Railway Byelaw 14(4)(iii)

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

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Department for Transport,

This request concerns the byelaws covering clamping in station car parks.

Byelaw 14(4)(iii) of the Railway Byelaws 2005 provides that:
“ the Owner of the motor vehicle ...shall be liable to an Operator or an authorised person for the costs incurred in clamping, removing or storing it............”

I have looked into the requisite enabling legislation for this byelaw. I note that s219 of the Transport Act 2000 gives the power to make bye-laws regulating:
“(d) the conduct of persons while on railway assets”.
This would appear to cover the situation if the Owner of the vehicle was “on railways assets” - ie if he was the person in charge of the vehicle - at the time of the parking infringement.

However in a large proportion of cases (eg where cars are hired, or purchased on h.p) the owner of the vehicle will not be “on railway assets” at the relevant time – a situation which is beyond the scope of s219 (d) of the Transport Act 2000.

I would therefore be very grateful for the following information:

1. Has any Secretary of State for Transport has ever confirmed or made any laws (including byelaws and regulations) since the Transport Act 2000 became operational whereby the Owner of a vehicle shall be liable to an Operator or an authorised person for the costs incurred in clamping, removing or storing a vehicle, even if he was not “on railway assets” at the relevant time.

2. If so, please would you direct me to:
a) the relevant byelaw;
b) the relevant section within the enabling Act of Parliament.
c) the regulations setting out such matters as: exemptions from owner liability (eg where vehicle hired; vehicle stolen; driver disabled); whether payment of the release fee by the Owner discharges the driver of any liability to conviction; how payment of the release fee is enforced.

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 P0013402.

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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Dear Department for Transport,

I have made a mistake in my wording of Q2(c). I should not have referred to "a release fee" since of course release fees have no application in the context of the Railway Byelaws.

Would you therefore please substitute the words "costs incurred ", which is the sum referred to in the Byelaw?

It makes no difference to the substance of my questions. I simply want to avoid any confusion.

Thank you.

Yours faithfully,

R Bostock

FOI-ADVICE-TEAM-DFT, Department for Transport

Dear R Bostock,

I have forwarded your follow-up email to our case handler.

Regards,

Ivan Pocock | FOI Advice Team, Group Commercial Services Directorate, Department for Transport
D/04 |

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Rail-franchise-correspondence, Department for Transport

2 Attachments

Dear R 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,

Thank you for your reply.

Unfortunately it has not fully answered my question: you have told me about the Railway Byelaws which the Secretary of State has confirmed, but byelaws can only be confirmed within the context of the enabling legislation.

S219 of the Transport Act 2000 empowered the Strategic Rail Authority to make Byelaws regulating the conduct of persons while on railway assets. For the purposes of Railway Byelaw 14(4)(iii) this would cover an Owner who was on railway assets at the relevant time.

So what I am asking is this: of the Railway Byelaws confirmed by the Secretary of State, are there any for which the enabling legislation allows liability to extend to an Owner who was not on railway assets at the relevant time? This requires a yes or no answer. If yes, please would you direct me to the enabling legislation concerned.

Many thanks.

Yours sincerely,

R Bostock

Secretary, Sevenoaks Rail Travellers Association left an annotation ()

The DfT's response also appears evasive as it only refers to the period since the SRA was abolished (in 2005-6). However the functions, and therefore the records, of the SRA were subsumed into DfT so they should surely have searched the SRA's records for 2000-2005 as well?

Dear Rail-franchise-correspondence,

I need to press you for a definitive answer.

Yours sincerely,

R Bostock

Dear FOI-ADVICE-TEAM-DFT,

It is a month now since I requested clarification of your reply, and despite a reminder there has been no response at all. Please would you chase this up for me?

Yours sincerely,

R Bostock

FOI-ADVICE-TEAM-DFT, Department for Transport

Dear R Bostock,

I have forwarded your email to the Rail Franchise Correspondence Team to answer.

Regards,

Ivan Pocock | FOI Advice Team, Group Commercial Services Directorate, Department for Transport
D/04 |

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Jeaur Rahman, Department for Transport

2 Attachments

Dear Mr Bostock,

 

Please find attached reply to your follow-up query. 

 

 

[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 FOI-ADVICE-TEAM-DFT,

I am dismayed by your continued refusal to give a definitive answer to my question.

I am not, as you suggest, asking for legal advice. Nor am I asking for your views or opinions. I am asking for factual information as to the existence or otherwise of a specific statutory provision.

So that there can be no misunderstanding, perhaps it would help if I have another go at rewording my question:
“Does any statutory provision exist, within the enabling legislation under which the Railway Byelaws were made, which grants the power to make byelaws imposing liability upon a vehicle owner who was not on railway assets at the relevant time?”

I am entitled to an answer. As the owner of a vehicle which is frequently used by other members of the family and their friends, I am entitled to know what laws might affect me. I can do no better than to quote Lord Diplock's well-known dictum that "acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”.

The ability to know in advance is the crucial point. Yet it would seem from your replies that you disagree with His Lordship; for as we all know, the chances of a member of the public bringing a free-standing application to the Court as you appear to suggest are pretty well nil. The Court would only become seized of the matter if a dispute as to actual liability arose. Inevitably, this would only occur after - as opposed to in advance of - the event.

Besides, I am not seeking an interpretation of the law that requires the Courts' ruling. I am simply asking for information which you, the DfT, are best-placed to provide - after all it was you who confirmed the Byelaws. As part of this process it would have been the Department's clear duty to identify the enabling legislation (by which I mean the provisions within the Act/s of Parliament under which the Byelaws were to be made). Your statement “we are not aware of any enabling legislation” is therefore not acceptable as an answer.

So: either the statutory provision in question exists, or it does not. I have not found it but I cannot be sure I haven't missed it. You are the confirming authority; the answer must lie within your domain. If you are unable to identify any such provision, or find any record of it, then the right answer must surely be “No; there is no such provision”.

To quote Lord Diplock again:
“The need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him...by reference to identifiable sources that are publicly accessible.”
With that in mind, please would you look at this again and tell me, clearly and without fudging: yes? Or no?

If yes, please would you refer me to the " identifiable source".

Yours sincerely,

R Bostock

Dear FOI-ADVICE-TEAM-DFT,

I have not received a response to my letter dated 25 April.

I hope it has not gone astray?

Yours sincerely,

R Bostock

Rail-franchise-correspondence, Department for Transport

1 Attachment

Dear Mr Bostock,

Please find attached reply to your follow-up query.

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

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Dear Rail-franchise-correspondence,

Thank you for your reply.

I am sorry to have to come back to you but I do need your help in confirming that I have got what you say absolutely right. I do not want to end up in Court being told that ignorance of the law is no excuse, so it's important to make sure I have understood you correctly, particularly as there seems to have been some confusion along the way.

You initially told me you were “not aware of any enabling legislation”; however in your latest reply you confirm that the enabling legislation is indeed S219 if the Transport Act 2000. As can be seen, this section makes no mention of any power to make byelaws regarding persons not on railway assets – i.e. it does not expressly grant such power.

I appreciate that whether or not such a power can be implied would be a matter for the Court to decide; but until that happens please would you confirm that as far as you are concerned, no Act of Parliament has expressly granted to the Strategic Rail Authority (or, later, to Train Operation Companies) the power to make byelaws regarding persons not on railway assets (including byelaws imposing liability on vehicle owners who were not on railway assets at the relevant time).

Yours sincerely,

R Bostock

Rail-franchise-correspondence, Department for Transport

1 Attachment

Dear Mr 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 Department for Transport,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Transport's handling of my FOI request 'Railway Byelaw 14(4)(iii)'.

I did not request this review earlier because the DfT Correspondence Manager told me (see his latest reply) that if I were to request an internal review "the independent reviewer would only be able to look at the question of whether the Department holds relevant information in recorded form". I now see, following further research, that this is not the case.

May I refer you to FIO request F0008550 which can be found at https://www.whatdotheyknow.com/request/1...

In that case the independent reviewer pointed out that underpinning the FOI Act is a general duty to provide advice and assistance to those who have made requests for information. Ms. Bannerjee had asked the DfT: “what is the line of thinking (and intent) behind the DfT – the drafter and approver of the Railway Byelaws - in excluding from enforcement, offences already addressed in other legislation.”. After a series of unsatisfactory answers she requested an internal review.

Her complaint was upheld because the Department's response should have been more helpful, and in particular the original response failed satisfactorily to explain the practical implications and rationale for the position.

The DfT have been similarly unhelpful in my case. They have failed to explain the practical implications of Byelaw 14 (4), in particular regarding “owner liability”.

Common sense tells me that this byelaw would only affect an owner who was “on railway assets” - ie with the vehicle – at the relevant time. Otherwise an owner whose car was stolen, or leased, or who, having recently bought the vehicle, was not the owner at the relevant time, could find himself liable. I do not believe this can be the intention. Notably, there are no regulations such as can be found in relation to public car parks (eg the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007).

A close study of the enabling act – the Transport Act 2000 – seems to me to confirm this position. I do not see any express power to make byelaws concerning persons who were not on railway assets at the relevant time.

However, I was not the one who made these Byelaws. That is why I am asking the DfT, who did, to confirm whether I have understood the situation correctly.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/r...

Yours faithfully,

R Bostock

FOI-ADVICE-TEAM-DFT, Department for Transport

Dear R Bostock,

I am writing to acknowledge receipt of your request for an internal review. A response will be issued to you in due course.

Regards,

Ivan Pocock | FOI Advice Team, Group Commercial Services Directorate, Department for Transport
D/04 | AHH

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FOI-ADVICE-TEAM-DFT, Department for Transport

Dear R Bostock

Thank you for your email of 22 August in which you requested an Internal Review into the Department's handling of your FOI request (case reference number F0013402). I am writing to keep you informed of progress.

The Department aims to complete Reviews within 20 working days. However in this instance, owing to the technical nature of the subject and staff absences, we have been unable to meet that timeframe.

We expect to be in a position to respond substantively by 4 October.

Yours sincerely

P Parr
FOI Advice Team

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Dear FOI-ADVICE-TEAM-DFT,

Thank you for letting me know.

Yours sincerely,

R Bostock

Dear FOI-ADVICE-TEAM-DFT,

October 4th was yesterday. Please would you let me know what is going on.

Yours sincerely,

R Bostock

FOI-ADVICE-TEAM-DFT, Department for Transport

Dear R Bostock

I would like to offer my apologies for the delay in completing the internal review. As we advised on 20 September, we needed extra time to complete the review due to staff absence, and the technical complexities that this request had generated. Unfortunately, we are not yet in a position to respond.

We hope to be in a position to communicate the outcome of the review to you next week, but by 18 October at the latest.

Yours sincerely

P Parr

P Parr | FOI Manager, FOI Advice Team, Information & Security Division, Department for Transport

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Dear FOI-ADVICE-TEAM-DFT,

Oh dear. Thank you for letting me know.

Yours sincerely,

R Bostock

FOI-ADVICE-TEAM-DFT, Department for Transport

1 Attachment

Dear R Bostock

You requested an Internal Review into the Department for Transport's handling of your request relating to Railway Byelaw 14(4)(iii). An Internal Review has now been completed and I attach a letter which sets out the reviewer's findings.

Your sincerely

P Parr

P Parr | FOI Manager, FOI Advice Team, Information & Security Division, Department for Transport

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R Bostock left an annotation ()

I have ticked the "partially successful" box because the DfT have stated they have no information as to whether Parliament has EXPRESSLY given the SRA or TOCs the power to make Byelaws affecting persons not on railway assets (such as owners who were not with their vehicles, on railway property, at the material time).

Statutes are necessarily recorded in writing. Therefore if there were such a provision the DfT would have a record of it.

So, by saying that following thorough searches they can find no record, the DfT are in effect saying, in a typically convoluted way: "No. Parliament has made no such express provision."

The question remains: could the power be implied? It would be extremely difficult for a Court to interpret s219 Transport Act 200 in this way particularly as th DfT themselves felt unable to do so.

The words of Tony McNulty may be helpful here. The question was raised in a standing committee discussion as to whether the Byelaws created liability for a nuisance caused by a person who was not on railway property. Mr. McNulty said:
"To be entirely fair, the Byelaws, by definition, must apply to the utilisation of those relevant assets, and people's behaviour on those assets....."
The link is here:
http://www.publications.parliament.uk/pa...