Enforcement of Railway Byelaw 14

R Bostock made this Freedom of Information request to Department for Transport

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Dear Department for Transport,

I note that about 10 years ago government discussions took place about the making and enforcement of byelaws in general. One of the problems under discussion was that under the existing regime, penalties for breach of byelaws could only be imposed by the Court. One of the consultation documents can be found here: http://webarchive.nationalarchives.gov.u...

Proposals for alternative methods of enforcement were put forward. Although a number of byelaws which are within Department for Transport's province were included in the list for discussion, the Railway Byelaws 2005 were not mentioned.

So:-

1. Please would you tell me if any Secretary of State for Transport since the coming into force of the Railway Act 1993 has ever confirmed or made any laws (including byelaws and regulations), which empower any person or body other than the Courts to impose a penalty for breach of Byelaws14(1), 14(2) or 14(3) of the Railway Byelaws 2005.

2. If so, please would you tell me:
a) the relevant section within the enabling Act of Parliament.

b) the requisite regulations setting out, in particular:-
i) by whom the penalties may be imposed;
ii) the circumstances in which they may be imposed;
iii) the safeguards against double liability – ie whether payment of a penalty is in lieu of prosecution, as in Fixed Penalties; or whether a penalty must be reimbursed if a person, having paid it, is later prosecuted - as required, for example, under para 10 of the Railways (Penalty Fares) Regulations 1994;
iv) the conditions that must be met before such penalties can be imposed – eg the minimum signage requirements;
v) the maximum time following an alleged offence during which a penalty can be imposed;
vi) the time allowed for paying the penalty;
vii)the enforcement process when the penalty remains unpaid (ie as a civil debt, or by prosecution for the original offence);
viii) how, to whom, and within what timescale a person might appeal.

Thank you.

Yours faithfully,

R Bostock

Department for Transport

Dear R Bostock,

I am writing to acknowledge receipt of your request for information which
has been allocated reference number P0013227.

A response will be issued to you in due course.

Regards,

Ivan Pocock
Department for Transport
FOI Advice Team
Information & Security Division
Zone D/04
Ashdown House
Sedlescombe Road North
St Leonards on Sea
East Sussex
TN37 7GA

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Duncan McKenzie left an annotation ()

You will find the following interesting and informative.

http://parking-prankster.blogspot.co.uk/...

R Bostock left an annotation ()

Thanks, that is really interesting.
The DVLA did nothing about a similar situation with Southeastern/DRPS either. They seem to be extremely unwilling to take any action to uphold this area of the law.
This would appear to be the DfT's general approach. They maintain in a previous FOIR that: "It is up to the train operators to follow the appropriate legislation".
This did make me wonder about the DfT's duty under s55, Railways Act 1993 as amended - especially as franchise agreements invariably contain a clause about "compliance with laws".

Rail-franchise-correspondence, Department for Transport

2 Attachments

Dear Mr Bostock,

 

Please find attached reply to your Freedom of Information request. 

 

 

 

[1][IMG]          Mr Jeaur Rahman 
Correspondence Manager, Passenger Services 

4/21 GMH, Great Minster House
33 Horseferry Road, London, SW1P 4DR        
[2]Follow us on twitter @transportgovuk 

 

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Dear Rail-franchise-correspondence,

I am afraid you have not answered my question. Your definition of “authorised person” is not relevant in this context: there is nothing in the Railway Byelaws 2005 which states that such a person has the power to impose a penalty.

I think you have allowed yourself to be confused by Railway Byelaw14(4)(i) which states:

“The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.”

However, in Question One I do not ask who might be liable for a penalty. I ask if anyone apart from the Courts has the power to impose a penalty. To save you having to refer back, this was my exact question:

“Please would you tell me if any Secretary of State for Transport since the coming into force of the Railway Act 1993 has ever confirmed or made any laws (including byelaws and regulations) which empower any person or body other than the Courts to impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.”

This question required a simple yes or no answer. Surprisingly, you say you do not hold this information. However, if the answer was “yes” you, as the authority in charge of the Railway Byelaws, would most certainly have a record of it; you would have a record of the enabling Act of Parliament; and you would also have a record of the other matters I set out in my second question - concerning the rules, safeguards and limitations under which the power to impose a penalty could be exercised. Therefore, in the absence of any such evidence at all, it must be right that the answer is “No.”

Please would you therefore confirm that the proper conclusion, in full, must be:
“No Secretary of State for Transport since 1994 has ever confirmed or made any laws (including byelaws and regulations, which empower any person or body other than the Courts to impose a penalty for breach of Byelaws 14 (1) to 14 (3).”

Yours sincerely,

R Bostock

[Name Removed] (Account suspended) left an annotation ()

Or the correct answer is that only a court can impose a fine or penalty because that is what the Bill of Rights 1689 says. Then it is only after a conviction. Byelaws are subject to the criminal law unless there has been an appropriate order concerning decriminalisation and which, as far as I am aware, has not been applied to Railway Byelaws. There are proposals to decriminalise Byelaws but that has been a proposal for about 5 years now and Parliament has not got around to it.

Bob

R Bostock left an annotation ()

Good point - I guess this would be precisely why a power to impose a penalty before conviction cannot be granted without a specific Act of Parliament.

Unless of course the penalty isn't really a penalty, merely consideration under a contract. This was the legal framework suggested here: https://www.whatdotheyknow.com/request/1... - an opinion disclosed in Martin Heron's FOIR entitled "Northern Rail £80 Fixed Penalty". The contract goes something along the lines of "You give us £x, and we won't prosecute".

Which, in the absence of statutory authority, is more commonly known as a bribe.

[Name Removed] (Account suspended) left an annotation ()

Then the PoFA does not apply if there are statutoy powers in place. The DfT has said that if there are statutory powers and you choose not to use them, preferring instead to use a PPC and the law of contract, then the DVLA will not make data available. The DfT does not appear to be living up to that assurance.

As for the Railways if there are Byelaws then it is an infringement of those that should be enforced and not private contract law

Dear Rail-franchise-correspondence,

I really need to press you for a definitve answer.

Yours sincerely,

R Bostock

Rail-franchise-correspondence, Department for Transport

1 Attachment

Dear R Bostock,

Please find attached reply to your email below.

Mr Jeaur Rahman  | Correspondence Manager, Passenger Services, Department for Transport
4/21 GMH |

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Dear Rail-franchise-correspondence,

A proper, clear reply. Thank you.

Yours sincerely,

R Bostock

[Name Removed] (Account suspended) left an annotation ()

If Government departments stopped playing games with the public and showed a much more honest and open side life would be so much easier

Bob