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PART 1 GENERAL
Citation, commencement and extent
1
1
These Regulations may be cited as The Quality Partnership Schemes (England) Regulations 2009 and come into force on 6th April 2009.
2
These Regulations apply to England only .
Interpretation
2
1
In these Regulations —
“ the Act ” means the Transport Act 2000;
“the 1981 Act ” means the Public Passenger Vehicles Act 1981 ;
“the 1985 Act ” means the Transport Act 1985 ;
“admissible objection” has the meaning given in regulation 7;
“authority” means a local transport authority ;
“lead authority” means —
the authority which has made, or is proposing to make, a scheme; or
where regulation 3 applies, the authority named as the lead authority in the notice of a proposed scheme given under section 115(1) of the Act;
“objector” means an operator who has made an objection in accordance with regulation 8;
“relevant operator” has the meaning given in regulations 5 and 6;
“scheme” means a quality partnership scheme;
“traffic commissioner” means, except for the purposes of regulations 5 and 7 —
where the area to which the scheme, or proposed scheme, relates falls entirely within one traffic area, the traffic commissioner for that traffic area; or
where the area to which the scheme, or proposed scheme, relates falls within two or more traffic areas, the traffic commissioner for the traffic area in which the lead authority’s area is situated.
2
Any period of days prescribed in these Regulations is to be calculated excluding any day which is Christmas Day, Good Friday, or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 .
3
In these Regulations, where a person is required to consider whether an operator could be expected to secure an “appropriate rate of return” for operating services of a particular standard specified in any proposed or existing scheme, that person must have regard to the typical rates of return for operating local services of a comparable nature elsewhere in England.
Identification of lead authority
3
1
This regulation applies to any scheme containing a standard of services which includes requirements as to —
a
the frequency or timing of services, or
b
the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions,
which is made, or is proposed to be made, by two or more authorities acting jointly.
2
Where this regulation applies, the authorities referred to in paragraph (1) must specify in the notice of the proposed scheme given in accordance with section 115(1) of the Act which of them is to act as the lead authority for the purposes of these Regulations.
3
Where this regulation applies the lead authority must, before exercising powers in relation to any of the duties and responsibilities assigned by virtue of these Regulations —
a
consult and seek representations from, and
b
wherever appropriate, act in accordance with the representations of,
the other authority or other authorities by whom the scheme is made, or is proposed to be made, jointly with the lead authority.
Services to be excluded from the application of section 114(6B) of the Act
4
1
This regulation applies where a local service is provided in accordance with a service subsidy agreement, or series of such agreements taken together, and that agreement or series of agreements has the effect described in paragraph (2).
2
The effect is that by virtue of a requirement of the agreement or series of agreements, an operator provides services which would meet one or more relevant requirements.
3
Where this regulation applies the restriction contained in section 114(6B) of the Act does not apply in respect of any relevant requirements.
4
For the purposes of this regulation —
a
a “service subsidy agreement” means an agreement made under section 9A(4) of the Transport Act 1968 or section 63(5) of the 1985 Act ; and
b
a “relevant requirement” means a requirement specified in a scheme, or proposed scheme, as to the standard of services to be provided in relation to the frequency or timing of services, or as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions.
PART 2 DETERMINATION OF RELEVANT OPERATOR AND ADMISSIBLE OBJECTION
Definition of “relevant operator”
5
1
For the purposes of sections 114(6B) and 122(3)(c) of the Act, “relevant operator” has the meaning given to it by this regulation and regulation 6.
2
Subject to paragraphs (3) and (4) a “relevant operator” is an operator who, on the day on which an authority or authorities first give notice under section 115(1) of the Act of the proposal to make a scheme —
a
is operating one or more local services in accordance with particulars registered under section 6 of the 1985 Act , or
b
is eligible under section 6(4) of the 1985 Act to have an application for registration accepted, and has made such an application to the traffic commissioner to register the particulars of one or more local services,
and the local service to which the registration or, as the case may be, application relates has one or more stopping places in the area to which the proposed scheme relates.
3
Paragraph (2) does not apply to an operator when —
a
the operator has, in respect of a local service to which paragraph (2)(a) applies, submitted an application to the traffic commissioner under section 6(7) of the 1985 Act to vary or cancel the registration of that local service, or
b
the operator has, in respect of an application to which paragraph (2)(b) applies, withdrawn that application,
and the effect of either sub-paragraph (a) or (b) is that the operator would not, at such time as the variation, cancellation or withdrawal takes effect, be operating any local services with one or more stopping places in the area to which the proposed scheme relates.
4
Paragraph (2) does not apply to an operator of local services if the only services which that operator provides, or proposes to provide, and to which that paragraph would otherwise apply are services which, under the scheme as proposed by the authority or authorities in the notice given under section 115(1) of the Act, would be excluded from the scheme under section 116(3) of the Act.
Definition of “relevant operator” following modification of proposed scheme
6
1
This regulation applies where an authority or authorities, following consultation under section 115 of the Act, make a scheme under section 116(1) of the Act with modifications and those modifications have the effect described in paragraph (2).
2
The effect is that an operator who did not, on the day referred to in regulation 5(2), satisfy the definition of a relevant operator in that paragraph would have satisfied that definition if the proposed scheme referred to in the notice given under section 115(1) of the Act had instead been the scheme as modified.
3
Where this regulation applies the lead authority must, as soon as reasonably practicable, serve notice on any operator to whom paragraph (2) may apply informing that operator of the modifications to the proposed scheme.
4
Regulations 8 to 15 apply to any operator on whom notice is required to have been served in accordance with paragraph (3) as if the reference in regulation 8(1) to the publication of a notice under section 115(1) of the Act was a reference to the service of a notice under paragraph (3) of this regulation.
Definition of “admissible objection”
7
1
For the purposes of sections 114(6B) and 122(3)(c) of the Act “admissible objection” has the meaning given to it in this regulation.
2
An “admissible objection” is an objection —
a
made in accordance with the procedure prescribed in regulation 8; and
b
which satisfies either or both of the grounds described in paragraph (3).
3
The grounds are that —
a
for either or both of the reasons listed in paragraph (4), it would not be practicable for the objector to provide particular relevant services, or relevant services of a particular description, to a specified standard which would apply to those relevant services if the scheme as proposed in the notice given under section 115(1) of the Act were to be made; or
b
taking into account the matters listed in paragraph (5), it would not be commercially viable for the objector, acting in a competent and efficient manner, to provide relevant services to a specified standard which would apply to those relevant services if the scheme as proposed in the notice given under section 115(1) of the Act were to be made.
4
The reasons referred to in paragraph (3)(a) are that —
a
additional vehicles would need to be procured by the objector, or existing vehicles upgraded, to provide the service to the particular standard specified in the proposed scheme and it would not be practicable for the objector to procure the additional vehicles, or to upgrade existing vehicles, by the date specified in the proposed scheme; or
b
additional staff would need to be employed by the objector to provide the service to the particular standard specified in the proposed scheme and it would not be practicable for the objector to employ the additional staff by the date specified in the proposed scheme.
5
The matters referred to in paragraph (3)(b) are —
a
the likely cost to the objector of providing relevant services to the particular standard which would apply to those services if the scheme as proposed in the notice given under section 115(1) of the Act were to be made;
b
the income which the objector would be likely to receive from operating the relevant services, taking into account any additional fare revenue which is likely to accrue as a result of the —
i
provision of facilities by the authority, and
ii
improvements to the standard of services,
if the scheme as proposed in the notice given under section 115(1) of the Act were to be made; and
c
whether, taking into account the matters described in sub-paragraphs (a) and (b), the objector could be expected to secure an appropriate rate of return from the operation of the relevant services in the area to which the proposed scheme relates.
6
Subject to paragraphs (7) and (8), for the purposes of this regulation “relevant services” means, in relation to a particular operator —
a
all local services registered under section 6 of the 1985 Act in the name of that operator which have one or more stopping places in the area to which the scheme relates and in respect of which, on the day on which the authority or authorities first gave notice under section 115(1) of the Act, the registration was extant; or
b
all proposed local services with one or more stopping places in the area to which the scheme relates in respect of which the operator had made an application to the traffic commissioner to register particulars under section 6 of the 1985 Act, and that application was made on or before the day on which the authority or authorities first gave notice under section 115(1) of the Act.
7
A local service is not a relevant service for the purposes of this regulation if, after the day on which the authority or authorities first gave notice under section 115(1) of the Act —
a
in respect of a local service to which paragraph (6)(a) applies, the operator submits an application to the traffic commissioner under section 6(7) of the 1985 Act to vary or cancel the registration of the service, and the effect is as described in paragraph (8); or
b
in respect of a proposed local service to which paragraph (6)(b) applies, the operator withdraws the application to register the service.
8
The effect is that, at such time as the variation or cancellation takes effect the local service or, as the case may be, proposed local service, which, but for paragraph (7) and this paragraph, would be a relevant service, has no stopping places in the area to which the scheme relates.
Procedure for making an objection
8
1
An operator who wishes to object to a requirement falling within section 114(6)(b) or (6A) of the Act must make the objection in writing and serve it on the lead authority within a period of 28 days beginning with the day on which the notice given under section 115(1) of the Act in relation to that requirement is published.
2
A copy of the objection made under paragraph (1) must, at the same time as the objection is served on the lead authority, be sent by the objector to the traffic commissioner.
3
An objection made under paragraph (1) must contain —
a
a statement describing the basis on which the objector considers that the objector is a relevant operator for the purposes of sections 114(6B) and 122(3)(c) of the Act;
b
a statement describing the basis on which the objector considers that either or both of the grounds specified in regulation 7(3) is or are satisfied; and
c
evidence to support the statements described in sub-paragraphs (a) and (b).
Request for further information by lead authority
9
1
Subject to paragraph (2) the lead authority may, within a period of 14 days beginning with the day on which an objection described in regulation 8 is received, request such further information or evidence from the objector as that authority considers necessary in order to reach a decision as to whether the objection is an admissible objection or the objector is a relevant operator.
2
The lead authority may, with the written consent of the objector, extend the 14 day period specified in paragraph (1).
3
If the lead authority requests information or evidence in accordance with paragraph (1) the authority must specify the period within which such information or evidence is to be submitted by the objector and that period must —
a
be of sufficient length, taking into account the nature and complexity of the request, to provide the objector with a reasonable period within which to respond; and
b
be not less than 14 days beginning with the day on which the request is issued by the authority.
4
If the objector fails to respond to a request under paragraph (1) within the period specified in the request in accordance with paragraph (3) the lead authority may nevertheless proceed to make a decision under regulation 10.
Decision of lead authority
10
1
Subject to paragraph (2), within a period of 28 days beginning with the day on which an objection is received or, as the case may be, the end of the period within which such further information or evidence requested under regulation 9 must be submitted, the lead authority must make a decision as to whether —
a
the objector is a relevant operator, and
b
the objection is an admissible objection,
and issue a written notice to inform the objector of that decision.
2
The lead authority may, with the written consent of the objector, extend the 28 day period specified in paragraph (1).
3
Where the decision of the lead authority is that —
a
the objector is a relevant operator, and
b
the objection is an admissible objection,
the written notice issued in accordance with paragraph (1) must satisfy the requirement described in paragraph (4).
4
The requirement is that the written notice must either —
a
describe the modifications that the lead authority proposes to make to the standard of services to be specified in the scheme as a consequence of the decision; or
b
describe when and in what manner the lead authority will issue a supplementary notice to inform the objector of the proposed modifications.
5
The lead authority must send a copy of the written notice issued in accordance with paragraph (1) and, where appropriate, the supplementary notice issued in accordance with paragraph (4)(b) to the traffic commissioner.
Referral to the traffic commissioner
11
1
The objector may, within a period of 14 days beginning with the day on which the written notice is issued under regulation 10(1) or, where appropriate, the supplementary notice described in regulation 10(4)(b) is issued, refer either of the matters described in paragraph (2) to the traffic commissioner for a determination under regulation 14.
2
The matters are —
a
an objection to the decision of the lead authority under regulation 10(1) that an objector is not a relevant operator or that an objection is not an admissible objection; or
b
an objection to the modified standard of services that the lead authority proposes to specify in the scheme as a consequence of a decision as described in regulation 10(3).
3
When a matter is referred to the traffic commissioner in accordance with this regulation the objector must at the same time send to the traffic commissioner —
a
a copy of the objection as submitted to the lead authority;
b
a copy of any further information or evidence submitted to the lead authority in response to any request under regulation 9(1);
c
where the matter is an objection described in paragraph (2)(a) a statement describing why, in the opinion of the objector, the decision of the lead authority made under regulation 10 is incorrect; and
d
where the matter is an objection described in paragraph (2)(b) a statement describing why, in the opinion of the objector, either or both of the grounds specified in regulation 7(3) are satisfied in relation to the modified standard of services proposed to be specified in a scheme.
4
The objector must, at the same time as submitting the information described in paragraph (3) to the traffic commissioner, submit a copy of that information to the lead authority.
Provision of information to traffic commissioner
12
1
Where a matter is referred to the traffic commissioner under regulation 11 for a determination the lead authority must, within a period of 14 days beginning with the day on which the information provided by virtue of regulation 11(4) is received, submit to the traffic commissioner —
a
a statement describing the basis on which the decision under regulation 10 was taken; and
b
any additional evidence or information which that authority considers to be relevant to the determination.
2
The lead authority must, at the same time as it submits the statement described in paragraph (1)(a), send to the objector a copy of that statement and such additional evidence or information which the lead authority is submitting to the traffic commissioner in accordance with paragraph (1)(b).
3
If the lead authority fails to submit the material described in paragraph (1)(a) and (b) within the period specified in that paragraph, the traffic commissioner may nevertheless proceed to make a determination under regulation 14.
4
The traffic commissioner may, within a period of 14 days beginning with the end of the period for the submission of the material described in paragraph (1)(a) and (b), request such further information or evidence from the objector or the lead authority as the traffic commissioner considers necessary in order to make a determination.
5
Where such information or evidence is requested in accordance with paragraph (4) the objector or, as the case may be, the lead authority must submit that information or evidence within a period of 14 days beginning with the day on which the request is received.
6
The objector or, as the case may be, the lead authority must, at the same time as it submits any information or evidence requested under paragraph (4) to the traffic commissioner, send a copy of that information or evidence to the lead authority or, as the case may be, the objector.
7
If the objector or, as the case may be, the lead authority fails to respond to a request under paragraph (4) within the period specified in paragraph (5) the traffic commissioner may nevertheless proceed to make a determination under regulation 14.
Assessors to assist traffic commissioners
13
1
This regulation applies where the traffic commissioner, in considering any matter referred under regulation 11, is required to determine whether the ground specified in regulation 7(3)(b) has been satisfied.
2
In making such a determination the traffic commissioner may be assisted by an assessor selected from a panel of persons appointed by the Secretary of State for the purposes of section 17A of the 1981 Act .
3
Where a traffic commissioner seeks the assistance of a person described in paragraph (2), the traffic commissioner must pay that person such remuneration as may be determined by the Secretary of State.
Determination of the traffic commissioner
14
1
Within a period of 28 days beginning with the date of the later of the following —
a
the end of the period for submission of the material described in regulation 12(1)(a) and (b), or
b
the end of the period within which such further information or evidence requested under regulation 12(4) must be submitted,
the traffic commissioner must make a determination of the matter referred under regulation 11 and issue a written notice to the objector and the lead authority informing them of the determination.
2
Where the determination of the traffic commissioner is that the objection should be upheld, the traffic commissioner may recommend to the lead authority such modifications to the requirements specified in the proposed scheme as to frequencies, timings or maximum fares as the traffic commissioner considers appropriate.
3
Where the traffic commissioner makes recommendations to the lead authority in accordance with paragraph (2), and the authority either —
a
modifies the scheme in accordance with those recommendations, or
b
removes the requirement to which the admissible objection relates,
the objection is no longer an admissible objection for the purposes of section 114(6B) of the Act.
4
Where either —
a
the traffic commissioner does not make recommendations to the lead authority in relation to a determination described in paragraph (2), or
b
the authority proposes modifications to the scheme which are different to those recommended by the traffic commissioner under paragraph (2),
paragraphs (5) to (9) apply.
5
Where this paragraph applies the lead authority must, within a period of 28 days beginning with the day on which the determination made under paragraph (1) is received, send a written notice to the objector describing the modifications that the authority proposes to make to the standard of services to be specified in the scheme as a consequence of a determination described in paragraph (2).
6
The lead authority may, with the written consent of the objector, extend the 28 day period specified in paragraph (5).
7
If within a period of 14 days beginning with the day on which the notice under paragraph (5) is received the objector has not withdrawn the objection, the lead authority may refer the matter back to the traffic commissioner for a determination.
8
Where any matter is referred back to the traffic commissioner by virtue of paragraph (7), the traffic commissioner must make a determination within a period of 14 days beginning with the date on which the matter is referred.
9
Where the determination of the traffic commissioner in response to a referral under paragraph (7) is that the objection is not an admissible objection, the objection is no longer an admissible objection for the purposes of section 114(6B) of the Act.
Extension of time
15
1
Where the traffic commissioner considers it to be necessary in order for a particular case to be dealt with fairly and justly the traffic commissioner may, in accordance with paragraph (2), extend any of the periods described in paragraph (3).
2
A period described in paragraph (3) may only be extended for such period as the traffic commissioner considers appropriate in the circumstances of the case.
3
The periods are those specified in —
a
regulation 11(1);
b
regulation 12(1);
c
regulation 12(4);
d
regulation 12(5);
e
regulation 14(1); and
f
regulation 14(8).
PART 3 REVIEW OF REQUIREMENTS AS TO FREQUENCIES, TIMINGS OR MAXIMUM FARES
Interpretation of Part 3
16
For the purposes of this Part —
a
a review is “completed” on the latest of the following dates —
i
where an objection to the whole or any part of the outcome of the review has been submitted by virtue of regulation 25(2), the date on which that objection is finally determined,
ii
the date on which the time for the submission of an objection under regulation 25(2) expires without any such objection having been made, or
iii
the date on which an objection made in accordance with regulation 25(2) is abandoned or withdrawn,
and “objection” includes a reference to any further referral to a traffic commissioner for a determination under regulation 11, as applied by regulation 25;
b
a request for a review of a requirement as to frequencies, timings or maximum fares is an “excepted request” if the lead authority is of the opinion that, since the relevant date, there has not been a change in market conditions which materially affects the ability of the operator or operators making the request, acting in a competent and efficient manner, to secure an appropriate rate of return from continuing to operate existing services to the standard specified in the scheme;
c
“existing services” means, in relation to a particular operator, all local services registered under section 6 of the 1985 Act in the name of that operator —
i
which have one or more stopping places in the area to which the scheme relates; and
ii
in respect of which, on the day on which the lead authority, without a request from a relevant participating operator, decides to start a review or, as the case may be, a request for a review is made by a relevant participating operator, the registration is extant;
d
“maximum fares requirement period” has the meaning given in regulation 17(2);
e
“participating operator” means, in relation to a particular scheme, an operator —
i
who has given a written undertaking to the traffic commissioner in accordance with section 118(4)(a) of the Act in respect of that scheme; and
ii
who is, at the relevant time, operating local services in accordance with the terms of that undertaking;
f
“relevant date”, in relation to a requirement as to frequencies, timings or maximum fares, means either —
i
the date on which the requirement or, where a requirement as to maximum fares is varied in accordance with a formula, that formula was first introduced; or
ii
where there has been a previous review of that requirement or formula, the date on which that review was completed;
g
“relevant participating operator” means, in relation to any requirement as to frequencies, timings or maximum fares specified in a scheme, a participating operator to whom that requirement applies; and
h
“review notice” means a notice issued by a lead authority to start a review of requirements as to frequencies, timings or maximum fares under these Regulations.
Review of requirements as to maximum fares by lead authority
17
1
Except where regulation 20 applies, where an authority or authorities make a scheme which specifies a standard of services which includes requirements as to the maximum fares that may be charged for particular journeys, of for journeys of particular descriptions, that scheme must specify a maximum fares requirement period in accordance with paragraphs (2) and (3).
2
A maximum fares requirement period is, as the case may be, the period —
a
between the date on which the requirements as to maximum fares first come into effect, and the latest date by which it is specified that the first review of those requirements must start; or
b
between the completion of a review of the requirements as to maximum fares, and the latest date by which it is specified that the next review of those requirements must start.
3
The maximum fares requirement period must be no greater than 12 months.
4
Prior to the end of the maximum fares requirement period the lead authority must start a review by issuing a written review notice to participating operators to whom the requirements as to maximum fares apply.
5
The review notice must propose —
a
that requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, contained in the scheme, or any part of the scheme, should cease to have effect;
b
that the existing maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, should continue to have effect until the next review; or
c
revised requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions.
6
Provided the lead authority issues a review notice prior to the end of the maximum fares requirement period, the existing requirements as to maximum fares contained in the scheme continue to have effect, unless paragraph (7) applies, until that authority makes a decision in accordance with regulation 24(2).
7
Where the decision made in accordance with regulation 24(2) is that revised requirements as to maximum fares should be incorporated into the scheme, the existing requirements as to maximum fares contained in the scheme continue to have effect until such time as those revised requirements take effect in accordance with the timetable specified in accordance with regulation 24(5)(b).
8
If the lead authority considers that either or both of the conditions in paragraph (9) are met in relation to some or all of the requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, it may, at any time prior to the end of the maximum fares requirement period, start a review of those requirements by issuing a written review notice to relevant participating operators.
9
The conditions are that —
a
there has, since the relevant date, been a change in market conditions which materially affects the ability of relevant participating operators, acting in a competent and efficient manner, to secure an appropriate rate of return from continuing to operate existing services in accordance with the requirements as to maximum fares specified in the scheme; or
b
the existing requirements are no longer consistent with the local transport policies of the lead authority or of the other authority or of any of the other authorities (as the case may be) by whom the scheme is made.
Failure of lead authority to review requirements as to maximum fares
18
1
If a lead authority fails to issue a review notice before the end of the maximum fares requirement period, any participating operator to whom requirements as to maximum fares apply may request a review of the requirements.
2
An operator who wishes to make a request under paragraph (1) must make the request in writing and serve it on the lead authority within a period of 28 days beginning with the day on which the maximum fares requirement period ends.
3
A copy of the request made under paragraph (1) must, at the same time as the request is served on the lead authority, be sent to the traffic commissioner.
4
If, within a period of 14 days beginning with the day on which a request made in accordance with paragraph (1) is received, the lead authority has not issued a review notice, any requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, cease to have effect.
5
If a lead authority fails to issue a review notice before the end of the maximum fares requirement period, and no request is made under paragraph (1), any requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, remain in force until —
a
revised requirements come into effect following a subsequent review, or
b
the requirements cease to have effect following a subsequent review,
whichever is the earlier.
Request for review of requirements as to maximum fares by operator
19
1
At any time prior to the end of the maximum fares requirement period a review of any requirement or requirements as to maximum fares may be requested by —
a
three or more relevant participating operators, or
b
at least 50% of relevant participating operators,
(whichever is the lesser).
2
Where a review is requested in accordance with paragraph (1) the operator or operators making the request must —
a
specify to which requirement or requirements as to maximum fares the request relates;
b
submit representations and evidence in support of the request; and
c
propose revised requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions.
3
Except where the request for a review is an excepted request the lead authority must, within a period of 28 days beginning with the day on which a request submitted in accordance with paragraph (1) is received, issue a written review notice to relevant participating operators.
Review of formula for varying maximum fares by lead authority
20
1
This regulation applies where a scheme includes requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, and that scheme includes a mechanism under which those maximum fares are varied at least every 12 months in accordance with a formula.
2
If the lead authority considers that the conditions in paragraph (3) are met in relation to any or all of the requirements as to maximum fares that may be charged for particular journeys, or for journeys of a particular description, which are varied in accordance with a formula the lead authority may, at any time, start a review of that formula by issuing a written review notice to relevant participating operators in accordance with paragraph (4).
3
The conditions are that —
a
there has, since the relevant date, been a change in market conditions which materially affects the ability of relevant participating operators, acting in a competent and efficient manner, to secure an appropriate rate of return from continuing to operate existing services in accordance with the requirements as to maximum fares specified in the scheme if the fares are varied in accordance with the formula; or
b
the effect of the formula is no longer consistent with the local transport policies of the lead authority or of the other authority or of any of the other authorities (as the case may be) by whom the scheme is made.
4
The review notice must propose —
a
that the requirements as to the maximum fares that may be charged for particular journeys, or for journeys of particular descriptions, contained in the scheme, or any part of the scheme, should cease to have effect;
b
one or more revisions to the formula referred to in paragraph (1); or
c
replacing the formula with specified maximum fares that may be charged for particular journeys, or for journeys of particular descriptions.
Request for review of formula varying maximum fares by operators
21
1
At any time during a period in which a formula described in regulation 20(1) applies a review of the formula may be requested by —
a
three or more relevant participating operators, or
b
at least 50% of relevant participating operators,
(whichever is the lesser).
2
Where a review of the formula is requested in accordance with paragraph (1), the operator or operators making that request must —
a
specify to which part of the formula the request relates;
b
submit representations and evidence in support of the request; and
c
propose a revised formula for the variation of maximum fares.
3
Except where paragraph (4) applies the lead authority must, within a period of 28 days beginning with the day on which the request submitted in accordance with paragraph (1) is received, issue a written review notice to relevant participating operators.
4
The obligation in paragraph (3) does not apply where the request submitted in accordance with paragraph (1) —
a
is received less than 12 months after the relevant date; and
b
is an excepted request.
Review of requirements as to frequencies or timings by lead authority
22
1
Where an authority or authorities make a scheme which specifies a standard of services which includes requirements as to the frequency or timing of services the lead authority may, if they consider that either or both of the conditions in paragraph (2) are met in relation to any or all of those requirements, start a review of those requirements by issuing a written review notice to relevant participating operators.
2
The conditions are that —
a
there has, since the relevant date, been a change in market conditions which materially affects the ability of relevant participating operators, acting in a competent and efficient manner, to secure an appropriate rate of return from continuing to operate existing services in accordance with the requirements as to the frequency or timing of services specified in the scheme; or
b
the existing requirements are no longer consistent with the local transport policies of the lead authority or of the other authority or of any of the other authorities (as the case may be) by whom the scheme is made.
3
The review notice must propose either —
a
that the requirements as to the frequency or timing of services contained in the scheme, or any part of the scheme, should cease to have effect; or
b
that those requirements should be revised.
Request for review of requirements as to frequencies and timings by operator
23
1
At any time a review of any requirement or requirements as to the frequency or timing of services may be requested by —
a
three or more relevant participating operators, or
b
at least 50% of relevant participating operators,
(whichever is the lesser).
2
Where a review is requested in accordance with paragraph (1) the operator or operators making that request must —
a
specify to which requirement or requirements as to the frequency or timing of services the request relates;
b
submit representations and evidence in support of the request; and
c
propose revised requirements as to frequencies and timings.
3
Except where paragraph (4) applies the lead authority must, within a period of 28 days beginning with the day on which the request submitted in accordance with paragraph (1) is received, issue a written review notice to relevant participating operators.
4
The obligation in paragraph (3) does not apply where the request submitted in accordance with paragraph (1) —
a
is received less than 12 months after the relevant date; and
b
is an excepted request.
Procedure for reviews
24
1
A review notice must specify the last date for the receipt of representations from relevant participating operators in response to that notice, and that date must be —
a
not less than 28 days, and
b
not more than 42 days,
after the date on which the review notice is issued.
2
The lead authority must, within a period of 35 days beginning with the date specified in the review notice in accordance with paragraph (1), decide whether the requirements as to frequencies, timings or maximum fares or, as the case may be, the formula used to vary maximum fares, should —
a
continue to have effect until the next review,
b
cease to have effect, or
c
be revised.
3
The lead authority must, once a decision is made by virtue of paragraph (2), issue a written notice to all relevant participating operators.
4
The lead authority may, with the written consent of all of the relevant participating operators, extend the period specified in paragraph (2).
5
Where the decision referred to in paragraph (2) is that the requirements as to frequencies, timings or maximum fares, or the formula used to vary maximum fares, should be revised, the notice issued under paragraph (3) must —
a
set out the details of the proposed revisions; and
b
subject to paragraph (6), set out the timetable for the proposed implementation of the revisions.
6
The timetable specified in accordance with paragraph (5)(b) must —
a
provide for any revision of requirements as to maximum fares, or the formula used to vary maximum fares, to take effect as soon as reasonably practicable after the review is completed;
b
provide for any revision of requirements as to frequencies or timings to take effect as soon as reasonably practicable after the review is completed, taking into account the need for operators, as appropriate, to register a new local service, or vary or cancel the registration of an existing local service, in accordance with section 6 of the 1985 Act; and
c
take into account, where the lead authority is aware that a relevant participating operator is party to a voluntary partnership agreement, as defined in section 153(2) of the Act, or any other agreement with operators of local services, any conditions which that agreement might contain restricting the implementation of changes to requirements as to frequencies, timings or maximum fares to particular dates or times in the year.
Objections to the outcome of a review
25
1
Revised requirements as to frequencies, timings or maximum fares (including any revision to a formula described in regulation 20(1)) may come into effect only if there are no admissible objections to the revised requirements from relevant participating operators.
2
Where, following receipt of the notice described in regulation 24(3), a relevant participating operator wishes to submit an objection to the whole or any part of the outcome of the review, the procedures in regulations 8 to 15 apply as if the reference to a notice given under section 115(1) of the Act was a reference to a notice given under regulation 24(3).
Signed by authority of the
Secretary of State
Paul Clark
Parliamentary Under Secretary of State
Department for Transport
28th February 2009


type: legislation

jurisdiction: UK

text:
Citation, commencement and interpretation
1
1
This Order may be cited as the Human Fertilisation and Embryology (Supplementary Provision) Order 2009 and shall come into force on 1st October 2009.
2
In this Order —
“the 1990 Act ” means the Human Fertilisation and Embryology Act 1990 .
3
Expressions used in this Order and in the 1990 Act have the same meaning as in that Act.
Storage of permitted embryos which have been kept in storage for more than five years
2
1
Paragraph (2) applies to an embryo if —
a
it is a permitted embryo within the meaning of section 3ZA of the 1990 Act (permitted eggs, permitted sperm and permitted embryos);
b
the embryo is intended for use in treatment services;
c
the embryo is on 1st October 2009 being stored on premises to which a licence under paragraph 1 (licences for treatment) or paragraph 2 (licences for storage) of Schedule 2 to the 1990 Act (activities for which licences may be granted) relates;
d
immediately before that date, the statutory storage period applicable to the embryo under subsection (4) of section 14 of the 1990 Act (conditions of storage licences) was 5 years; and
e
on that date, the embryo has been kept in storage for more than 5 years.
2
In relation to the storage, on or after 1st October 2009, of an embryo to which this paragraph applies, the statutory storage period applicable under subsection (4) of section 14 of the 1990 Act is to be taken to be such period, not exceeding the maximum period specified in paragraph (3), as the licence may specify.
3
That maximum period is a period of 10 years beginning with the day on which the embryo was first placed in storage.
Signed by authority of the Secretary of State for Health.
Gillian Merron
Minister of State,
Department of Health
9th September 2009


text:
Citation, commencement and extent
1
1
This Order may be cited as the Wireless Telegraphy (Limitation of Number of Grants of Crown Recognised Spectrum Access) Order 2009 and shall come into force on 23rd January 2009.
2
This Order shall not extend to the Channel Islands or to the Isle of Man.
Limitation of grants
2
1
The Office of Communications will make a limited number of grants of recognised spectrum access for use of the frequency bands listed in the Schedule.
2
The grants shall only be made to the Crown.
3
Grants shall only be made where a wireless telegraphy station or wireless telegraphy apparatus is operated within any of the frequency bands listed in the Schedule by or on behalf of the Crown.
4
The number of grants will be the number which is most likely to secure the optimal use of the electromagnetic spectrum and promote competition in electronic communication services having regard to the matters set out in section 3(1) and (2) of the Wireless Telegraphy Act 2006.
Ed Richards
Chief Executive of the Office of Communications
for and by the authority of the Office of Communications
9th January 2009


text:
Citation, commencement and effect
1
1
These Regulations may be cited as the Social Security (Contributions) (Amendment No. 4) Regulations 2009.
2
These Regulations come into force on 13th August 2009, immediately after the coming into force of the Income Tax (Pay As You Earn) (Amendment No. 2) Regulations 2009.
3
The amendments made by regulation 3 shall have effect in relation to deferred payment agreements made on or after 13th August 2009.
4
The amendments made by regulations 4 to 8 shall have effect in relation to the tax year 2009-10 and subsequent tax years.
Amendment of the Social Security (Contributions) Regulations 2001
2
The Social Security (Contributions) Regulations 2001 are amended as follows.
3
In regulation 90K (default surcharge) after paragraph (7) insert —
8
Section 108 of the Finance Act 2009 (suspension of penalties during currency of agreement for deferred payment) applies to a surcharge payable under this regulation with the following modifications —
a
in subsections (1)(a), (1)(b) and (4)(a) omit the words “of tax”,
b
for subsection (5) substitute the following —
5
The references to an amount and penalty referred to in subsections (1) and (2) are —
Amount Penalty
Specified payments within the meaning of regulation 90M of the Social Security (Contributions) Regulations 2001 Surcharge under regulation 90K of the Social Security (Contributions) Regulations 2001
, and
c
omit subsections (7), (8), (9), and (11).
.
4
For the heading to regulation 90M (specified information and specified payments) substitute “Paragraph 22 return and specified payments”.
5
In regulation 90M —
a
for the definition of “specified information” substitute —
“paragraph 22 return” means the return and accompanying information required by paragraph 22 of Schedule 4 (return by employer at the end of the year);
, and
b
in the definition of “specified payments” after “paragraph 10” insert “of Schedule 4”.
6
In regulation 90N (mandatory use of electronic communications) —
a
for paragraph (1) substitute —
1
Where an employer is required to deliver a relevant annual return by an approved method of electronic communications to Her Majesty’s Revenue and Customs under regulation 205 of the PAYE Regulations (mandatory use of electronic communication for delivering relevant annual returns), the employer must also deliver the paragraph 22 return required in relation to that tax year to an official computer system using an approved method of electronic communications.
,
b
omit paragraph (2),
c
in paragraph (3) for “205(2)” substitute “205B(1)” , and
d
after paragraph (4) insert —
5
The expression “relevant annual return” has the meaning given in regulation 206A of the PAYE Regulations.
.
7
In regulation 90O (standards of accuracy and completeness) for “Specified information”, in each place where it occurs, substitute “Any paragraph 22 return”.
8
In regulation 90P (penalties and appeals) —
a
in paragraph (1) for “specified information” substitute “a paragraph 22 return”,
b
for paragraph (2) substitute the following —
2
Table 2 sets out the penalties for employers for the tax year ending 5th April 2010, depending on the number of employees for whom particulars should have been included with the paragraph 22 return.
Table 2
Penalties: tax year ending 5th April 2010
1 Number of employees for whom particulars should have been included with the return 2 Penalty
1-5
6-49
50-249
250-399
400-499
500-599
600-699
700-799
800-899
900-999
1000 or more
0
£100
£600
£900
£1200
£1500
£1800
£2100
£2400
£2700
£3000
2A
Table 3 sets out the penalties for employers for the tax years ending 5th April 2011 and subsequent years, depending on the number of employees for whom particulars should have been included with the paragraph 22 return.
Table 3
Penalties: tax year ending 5th April 2011 and subsequent years
1 Number of employees for whom particulars should have been included with the return 2 Penalty
1-5
6-49
50-249
250-399
400-499
500-599
600-699
700-799
800-899
900-999
1000 or more
£100
£300
£600
£900
£1200
£1500
£1800
£2100
£2400
£2700
£3000
c
in paragraph (3) —
i
in sub-paragraph (a) for “specified information” substitute “paragraph 22 return”, and
ii
for sub-paragraph (b) substitute —
b
been subject to a penalty for failing to comply with regulation 205 of the PAYE Regulations (mandatory use of electronic communication for delivering relevant annual returns) in relation to the same tax year.
.
Dave Hartnett
Bernadette Kenny
Two of the Commissioners for Her Majesty’s Revenue and Customs
22nd July 2009


text:
1
This Order may be cited as the International Joint Investigation Teams (International Agreement) Order 2009 and shall come into force on the first day of the month following the expiry of three months from the date on which the United Kingdom deposits an instrument of ratification in respect of the Second Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters with the Secretary General of the Council of Europe .
2
The Second Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters is specified for the purposes of–
a
sections 39(6)(c) and 41(5)(c) of the Police (Scotland) Act 1967;
b
sections 88(7)(c) and 89(5)(c) of the Police Act 1996;
c
sections 29(7)(c) and 66(6)(c) of the Police (Northern Ireland) Act 1998; and
d
sections 30(5)(c) and 57(6)(c) of the Serious Organised Crime and Police Act 2005.
West of Spithead
Parliamentary Under Secretary of State
Home Office
9th December 2009


text:
Citation and commencement
1
This Order may be cited as the Cambridge City Fringes Joint Committee Order 2009 and shall come into force on 1st July 2009.
Interpretation
2
In this Order —
“the 1972 Act ” means the Local Government Act 1972 ;
“the 2004 Act ” means the Planning and Compulsory Purchase Act 2004;
“ the Agreement ” means the Agreement dated 9th September 2008 between the constituent authorities;
“the constituent authorities” means the authorities specified in article 3(2);
“co-opted member” means a member of the joint committee appointed in accordance with article 5(5);
“the joint committee” means the Cambridge City Fringes joint committee;
“sub-committee” means a sub-committee appointed under article 8(1); and
“voting member” means a person appointed under article 5(1) and entitled to vote in accordance with article 5(2).
Establishment of the joint committee
3
1
A joint committee, to be known as the Cambridge City Fringes joint committee, is constituted as the local planning authority for the purposes of Part 2 (local development) of the 2004 Act for the parts of the administrative areas of the constituent authorities specified in the Agreement, and in respect of the matters specified in article 4(1) (being matters specified in the Agreement).
2
The following authorities are specified as those which are to constitute the joint committee —
a
Cambridgeshire County Council;
b
Cambridge City Council; and
c
South Cambridgeshire District Council.
Functions of the joint committee
4
1
The matters referred to in article 3(1) are the preparation, submission and revision of —
a
a joint local development scheme; and
b
the local development documents specified in the joint local development scheme.
2
Section 15 (local development scheme) of the 2004 Act shall apply in relation to the joint committee as if for paragraph (b) of subsection (3) there were substituted —
b
submit its joint local development scheme to the Secretary of State not later than 1st January 2010;
.
Membership of the joint committee and voting rights
5
1
The joint committee shall consist of —
a
3 members appointed by Cambridgeshire County Council;
b
3 members appointed by Cambridge City Council;
c
3 members appointed by South Cambridgeshire District Council; and
d
such number of co-opted members as may be appointed pursuant to paragraph (5).
2
The members appointed by the constituent authorities who are present at a meeting of the joint committee shall be entitled to vote at that meeting on any question falling to be decided at that meeting.
3
Each constituent authority shall appoint a substitute for each voting member it appoints; and where paragraph 1(6)(c) of the Schedule applies, a substitute shall be entitled to vote at the meeting of the joint committee as regards which that substitute is deemed to be a voting member, on any question which falls to be decided at that meeting.
4
A constituent authority shall not appoint as a voting member or substitute a person who is not a member of that authority.
5
The joint committee may invite other bodies to participate in proceedings of the joint committee, and each body that accepts such an invitation shall appoint one member of the joint committee.
6
A member co-opted under paragraph (5) shall not be entitled to vote at any meeting of the joint committee on any question which falls to be decided at that meeting.
7
Voting members and substitutes shall be entitled to recover from the constituent authority by which they are appointed any expense they incur in connection with the discharge of the joint committee’s functions.
Disqualification for membership of the joint committee
6
1
A person who is disqualified under Part 5 (general provisions as to members and proceedings of local authorities) of the 1972 Act for being elected or being a member of a local authority shall be disqualified for being a member of the joint committee.
2
Section 92 (proceedings for disqualification) of the 1972 Act, with the exception of subsections (7), (7A), (7B) and (8), shall apply with respect to membership of, or claims to be entitled to act as a member of, the joint committee as it applies to membership of, or claims to be entitled to act as a member of, a local authority.
Tenure of office
7
1
A person shall cease to be a voting member of the joint committee if the person —
a
resigns in accordance with paragraph (4);
b
is removed or replaced by the constituent authority which made the appointment; or
c
ceases to be a member of a constituent authority (and does not on the same day again become a member of that or any other constituent authority).
2
A person appointed as a co-opted member of the joint committee shall hold office until one of the following occurs —
a
the person resigns in accordance with paragraph (4);
b
the person is removed or replaced by the body which made the appointment; or
c
the joint committee decides that the body which made the appointment may no longer participate in proceedings of the joint committee.
3
A person who ceases to be a voting member of the joint committee shall be eligible for reappointment.
4
A member may resign from the joint committee by sending written notice delivered —
a
in the case of a member appointed by a local authority, to the proper officer of the local authority which appointed the member;
b
in any other case, to the body which appointed the member.
5
Any casual vacancy shall be filled as soon as practicable by the body which appointed the member of the joint committee whose membership has ceased.
Sub-committees
8
1
The joint committee may, in accordance with paragraphs (2) and (3), appoint one or more sub-committees.
2
Each person appointed as a member of a sub-committee must be a member of the joint committee.
3
Subject to paragraph (2), the persons appointed to a sub-committee and its terms of reference shall be determined by the joint committee.
Meetings and proceedings
9
1
The meetings and proceedings of the joint committee shall be conducted in accordance with the rules set out in the Schedule to this Order, which shall have effect.
2
Sub-paragraphs (4) and (5) of paragraph 1 of the Schedule (meetings) and sub-paragraph (1) of paragraph 6 of the Schedule (proceedings of meetings) shall apply with respect to meetings of a sub-committee as if references to the joint committee were references to the sub-committee.
Secondments
10
1
The constituent authorities shall make secondments, in accordance with the Agreement, of such officers as they think necessary to enable the joint committee and sub-committees to discharge their functions.
2
The joint committee may make arrangements with a constituent authority for the services of any officer of that authority or other person engaged by that authority to be placed at the disposal of the joint committee or a sub-committee for such period as may be agreed between the joint committee and the constituent authority.
3
The joint committee may make arrangements for the services of any person employed by a body which has appointed a co-opted member to be placed at the disposal of the joint committee or a sub-committee for such period as may be agreed between the joint committee and the body.
Expenses of joint committee
11
1
The expenses incurred by the joint committee and sub-committees shall be defrayed by Cambridgeshire County Council.
2
The other constituent authorities shall make payments to Cambridgeshire County Council in respect of the sums defrayed in accordance with paragraph (1), in such proportions as all the constituent authorities may agree or, in default of agreement, as may be determined by a single arbitrator agreed on by the constituent authorities or, in default of agreement, appointed by the Secretary of State.
Signed by authority of the Secretary of State for Communities and Local Government
Iain Wright
Parliamentary Under Secretary of State
Department for Communities and Local Government
18th May 2009


text:
1
This Order may be cited as the Constitutional Reform Act 2005 (Commencement No. 11) Order 2009.
2
The following provisions of the Constitutional Reform Act 2005 come into force on 1st October 2009 —
a
sections 23 to 44;
b
sections 47 to 60;
c
sections 137 and 138;
d
Schedules 8, 9, 10, 11 and 16;
e
paragraphs 9 to 35 of Schedule 17 (and section 145 so far as relating to those provisions);
f
Parts 5 and 6 of Schedule 18 (and section 146 so far as relating to those provisions).
Jack Straw
Lord Chancellor
26th June 2009


text:
Citation, commencement and effect
1
These Regulations may be cited as the Pension Schemes (Reduction in Pension Rates) (Amendment) Regulations 2009 and —
a
shall come into force on 1st July 2009; and
b
have effect from 6th April 2006.
Amendment of the Pension Schemes (Reduction in Pension Rates) Regulations 2006
2
In the Pension Schemes (Reduction in Pension Rates) Regulations 2006 , for regulation 3 substitute —
Reduction of pension – prescribed circumstances
3
The circumstances described in regulations 4 and 5 are prescribed circumstances for the purpose of paragraph 2(4)(h) (scheme pension - other circumstances in which reduction does not breach condition in paragraph 2(3)).
Reduction of pension under certain provisions
4
The circumstances are that the pension is reduced under any of the following provisions —
a
section 138(2) of the Pensions Act 2004 (payment of scheme benefits);
b
article 122(2) of the Pensions (Northern Ireland) Order 2005 (payment of scheme benefits);
c
paragraph 14(3) or 15(3) of Schedule 5 to the Gender Recognition Act 2004 (guaranteed minimum pension etc ).
Reduction of pension during winding-up
5
1
The circumstances are that —
a
an occupational pension scheme reduces the pension while the scheme is being wound up; and
b
the reason for the reduction is that the sums or assets held for the purposes of the scheme are insufficient to pay the pension at the rate at which the pension was being paid at the relevant time.
2
A reduction of pension is not within the circumstances described in this regulation if the reduction is part of avoidance arrangements.
3
In this regulation, “avoidance arrangements” includes schemes, arrangements and understandings of any kind (whether or not legally enforceable) the main purpose, or one of the main purposes, of which is to increase the member’s entitlement to a lump sum on which there is no liability to income tax.
.
Steve Lamey
Mike Eland
Two of the Commissioners for Her Majesty’s Revenue and Customs
28th May 2009


text:
Citation and commencement and application
1
This Order may be cited as the Commonwealth Countries and Ireland (Immunities and Privileges) (Amendment) Order 2009 and shall come into force on 7th August 2009. The Order applies to England.
2
Article 9 of the Commonwealth Countries and Republic of Ireland (Immunities and Privileges) Order 1985 is revoked and replaced by the following article —
9
The like relief from non-domestic rates as is accorded under Article 32 in Schedule 1 to the Act to consular premises shall be extended to the offices of the Falklands Islands Government Representative in London, of the Cayman Islands Government Representative in London, of the Gibraltar Government Representative in London, of the Turks and Caicos Islands Government Representative in London, of the British Virgin Islands Representative in London and of the Bermuda Government Representative in London.
3
Schedule 1 to Article 3(a) of the Commonwealth Countries and Republic of Ireland (Immunities and Privileges) Order 1985 is revoked and replaced by the following Schedule —
SCHEDULE 1
Article 3a
Offices
Nauru
The Representative in the United Kingdom, London
Republic of Ireland
The Trade Inspector, Liverpool
Classes of Office
Trade Commissioners and Assistant Trade Commissioners for any independent country within the Commonwealth
Migration Officers for the Commonwealth of Australia
Assistant High Commissioners for Bangladesh
Assistant High Commissioners and Assistant Commissioners for India
Agents General for the States of Australia
Agents General for the Provinces of Canada
The Head of the Falkland Islands Government Representative in London
The Head of the Cayman Islands Government Representative in London
The Head of the Gibraltar Government Representative in London
The Head of the Turks and Caicos Islands Government Representative in London
The Head of the British Virgin Islands Government Representative in London
The Head of the Bermuda Government Representative in London.
Judith Simpson
Clerk of the Privy Council


text:
Citation, commencement and transitional provision
1
1
These Regulations may be cited as the Financial Markets and Insolvency Regulations 2009 and shall come into force on 15th June 2009.
2
Regulation 2 paragraphs (4), (5), (6), (7), (8), (9), (10) and (12) apply to insolvency proceedings which relate to any of the insolvency events set out in paragraph (3) which take place on or after the date on which these Regulations come into force.
3
The insolvency events are —
a
an application for an administration order;
b
an application for a bank administration order under Part 3 of the Banking Act 2009;
c
the filing of a notice of intention to appoint an administrator for an appointment under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 ;
d
where no notice of intention to appoint is filed, the appointment of an administrator under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986;
e
the presentation of a bankruptcy petition;
f
the presentation of a petition for sequestration of a person’s estate;
g
the presentation of a winding up petition;
h
an application for a bank insolvency order under Part 2 of the Banking Act 2009;
i
the passing of a resolution for voluntary winding up;
j
the appointment of an administrative receiver;
k
the making of an order appointing an interim receiver.
Amendment of the Companies Act 1989
2
1
The Companies Act 1989 is amended as follows.
2
In paragraph (c) of section 154 (introduction), after “such transactions” insert “or as default fund contribution, ”.
3
In section 155 (market contracts) —
a
in subsection (2) , at the end of paragraph (a) omit “and” and for paragraph (b) substitute —
b
contracts entered into by the exchange, in its capacity as such, with a member of the exchange or with a recognised clearing house or with another recognised investment exchange for the purpose of enabling the rights and liabilities of that member or clearing house or other investment exchange under a transaction to be settled; and
c
contracts entered into by the exchange with a member of the exchange or with a recognised clearing house or with another recognised investment exchange for the purpose of providing central counterparty clearing services to that member or clearing house or other investment exchange.
;
b
for subsection (2A), substitute —
2A
Where the exchange in question is a recognised overseas investment exchange, this Part does not apply to a contract that falls within paragraph (a) of subsection (2) (unless it also falls within subsection (3)).
;
c
for subsection (3) , substitute —
3
In relation to a recognised clearing house this Part applies to —
a
contracts entered into by the clearing house, in its capacity as such, with a member of the clearing house or with a recognised investment exchange or with another recognised clearing house for the purpose of enabling the rights and liabilities of that member or investment exchange or other clearing house under a transaction to be settled; and
b
contracts entered into by the clearing house with a member of the clearing house or with a recognised investment exchange or with another recognised clearing house for the purpose of providing central counterparty clearing services to that member or investment exchange or other clearing house.
; and
d
after subsection (3) insert —
3A
In this section “central counterparty clearing services” means —
a
the services provided by a recognised investment exchange or a recognised clearing house to the parties to a transaction in connection with contracts between each of the parties and the investment exchange or clearing house (in place of, or as an alternative to, a contract directly between the parties),
b
the services provided by a recognised clearing house to a recognised investment exchange or to another recognised clearing house in connection with contracts between them, or
c
the services provided by a recognised investment exchange to a recognised clearing house or to another recognised investment exchange in connection with contracts between them.
.
4
In subsection (2) of section 158 (modifications of the law of insolvency) —
a
for paragraph (a) substitute —
a
proceedings in respect of a recognised investment exchange or a member or designated non-member of a recognised investment exchange,
aa
proceedings in respect of a recognised clearing house or a member of a recognised clearing house, and
.
5
In section 159 (proceedings of exchange or clearing house take precedence over insolvency procedures) —
a
in subsection (1), after “sequestration, or”, insert “in the administration of a company or other body or”;
b
in subsection (4), after “or bankruptcy”, insert “or in the administration of a company or other body” and after “or sequestration”, insert “or in the administration of a company or other body”; and
c
in subsection (4A)(b) , after “England and Wales,” insert “or in the administration of a company or other body”.
6
In section 161 (supplementary provisions as to default proceedings) —
a
in subsection (2), after “liquidator”, insert “, administrator”;
b
in subsection (4) —
i
after “or paragraph”, insert “40, 41,”; and
ii
for “including paragraph 43(6) as applied by paragraph 44”, substitute “including those paragraphs as applied by paragraph 44”; and
c
in subsection (4) as it has effect, by virtue of section 249(1) of the Enterprise Act 2002, without the amendments made by paragraph 45 of Schedule 17 to that Act, for “10(1)(c), 11(3)” substitute “10, 11”.
7
In section 163 (net sum payable on completion of default proceedings) —
a
in subsection (2) —
i
for “or winding-up order has been made”, substitute “, winding-up or administration order has been made”;
ii
in paragraph (a), for “or winding up”, substitute “, winding up or administration”;
iii
in paragraph (b), after “winding up”, add “or administration”;
iv
after “(within the meaning of section 247 of the Insolvency Act 1986)”, insert “, or enters administration”; and
v
after “the date of the winding-up order” insert “or the date on which the partnership enters administration”.
b
in subsection (3) —
i
after “sequestration or a winding-up”, insert “or administration”;
ii
in each of paragraphs (a) and (b), for “or winding up”, substitute “, winding up or administration”; and
iii
after “(within the meaning of section 129 of the Insolvency Act 1986)”, insert “or the date on which the body corporate enters administration”;
c
after subsection (3), insert —
3A
In subsections (2) and (3), a reference to the making of an administration order shall be taken to include a reference to the appointment of an administrator under —
a
paragraph 14 of Schedule B1 to the Insolvency Act 1986 (appointment by holder of qualifying floating charge); or
b
paragraph 22 of that Schedule (appointment by company or directors).
; and
d
in subsection (4), at the end of paragraph (a) omit “or” , at the end of paragraph (b) insert “or”, and, after paragraph (b), insert —
c
that an application for an administration order was pending or that any person had given notice of intention to appoint an administrator,
.
8
In section 164 (disclaimer of property, rescission of contracts, &c) —
a
in subsection (1), at the end of paragraph (b) insert “or as default fund contribution”;
b
in subsection (3) —
i
after paragraph (b) insert —
ba
the provision of default fund contribution to the exchange or clearing house,
;
ii
in paragraph (c), after “in relation to a market contract” insert “or as default fund contribution”; and
iii
at the end of paragraph (d) insert “or as default fund contribution”;
c
in subsection (4) —
i
after “margin in relation to a market contract” insert “or default fund contribution”; and
ii
after “the margin” in each of the two places where the expression occurs insert “or default fund contribution”; and
d
in subsection (5) at the end insert “or of default fund contribution”.
9
In section 165 (adjustment of prior transactions) —
a
in paragraph (c) of subsection (4), after “clearing house”, insert “in question”; and
b
after subsection (4) insert —
5
This section also applies to —
a
the provision of default fund contribution to a recognised investment exchange or recognised clearing house,
b
any contract effected by a recognised investment exchange or recognised clearing house for the purpose of realising the property provided as default fund contribution, and
c
any disposition of property in accordance with the rules of the recognised investment exchange or recognised clearing house as to the application of property provided as default fund contribution.
.
10
In section 167 (application to determine whether default proceedings to be taken) —
a
for subsections (1) and (1A) substitute —
1
This section applies where a relevant insolvency event has occurred in the case of —
a
a recognised investment exchange or a member or designated non-member of a recognised investment exchange, or
b
a recognised clearing house or a member of a recognised clearing house.
The investment exchange, member, designated non-member or clearing house in whose case a relevant insolvency event has occurred is referred to below as “the person in default”.
1A
For the purposes of this section a “relevant insolvency event” occurs where —
a
a bankruptcy order is made,
b
an award of sequestration is made,
c
an order appointing an interim receiver is made,
d
an administration or winding up order is made,
e
an administrator is appointed under paragraph 14 of Schedule B1 to the Insolvency Act 1986 (appointment by holder of qualifying floating charge) or under paragraph 22 of that Schedule (appointment by company or directors),
f
a resolution for voluntary winding up is passed, or
g
an order appointing a provisional liquidator is made.
1B
Where in relation to a person in default a recognised investment exchange or a recognised clearing house (“the responsible exchange or clearing house”) —
a
has power under its default rules to take action in consequence of the relevant insolvency event or the matters giving rise to it, but
b
has not done so,
a relevant office-holder appointed in connection with or in consequence of the relevant insolvency event may apply to the Authority.
;
b
in subsection (2), for “the exchange or clearing house concerned” substitute “the responsible exchange or clearing house”;
c
in subsection (3) —
i
for “the exchange or clearing house”, in each of the three places where the expression occurs, substitute “the responsible exchange or clearing house”;
ii
for “the member or designated non-member in question” substitute “the person in default”; and
d
in each of subsections (4) and (5), for “the exchange or clearing house” substitute “the responsible exchange or clearing house”.
11
In section 170 (certain overseas exchanges and clearing houses) for subsection (1) substitute —
1
The Secretary of State and the Treasury may by regulations provide that this Part applies in relation to contracts connected with an overseas investment exchange or overseas clearing house which —
a
is not a recognised investment exchange or recognised clearing house, but
b
is approved by the Treasury in accordance with such requirements as may be so specified,
as it applies in relation to contracts connected with a recognised investment exchange or recognised clearing house.
.
12
In section 175 (administration orders, &c) as it has effect, by virtue of section 249(1) of the Enterprise Act 2002, without the amendments made by paragraph 47 of Schedule 17 to that Act, for subsection (1) substitute —
1
The following provisions of the Insolvency Act 1986 (which relate to administration orders and administrators) do not apply in relation to a market charge —
a
sections 10 and 11 (effect of application for administration order and of an administration order), and
b
section 15(1), (2) and (3) (power of administrator to deal with charged property).
.
13
In section 177 (application of margin not affected by certain other interests) —
a
in the heading, after “margin” insert “or default fund contribution”;
b
in each of subsection (1) and (2), at the end insert “or as default fund contribution”; and
c
in subsection (3), after “as margin” insert “or as default fund contribution”.
14
In subsection (1) of section 180 (proceedings against market property by unsecured creditors) —
a
after “as margin in relation to market contracts”, insert “or as default fund contribution,”; and
b
in paragraph (a), after “for margin”, insert “or as default fund contribution”.
15
In section 188 (meaning of “default rules” and related expressions) —
a
in subsection (1) after “person” insert “(including another recognised investment exchange or recognised clearing house )”; and
b
after subsection (3), insert —
3A
In this Part “default fund contribution” means —
a
contribution by a member or designated non-member of a recognised investment exchange to a fund which —
i
is maintained by that exchange for the purpose of covering losses arising in connection with defaults by any of the members of the exchange, or defaults by any of the members or designated non-members of the exchange, and
ii
may be applied for that purpose under the default rules of the exchange;
b
contribution by a member of a recognised clearing house to a fund which —
i
is maintained by that clearing house for the purpose of covering losses arising in connection with defaults by any of the members of the clearing house, and
ii
may be applied for that purpose under the default rules of the clearing house;
c
contribution by a recognised clearing house to a fund which —
i
is maintained by a recognised investment exchange or another recognised clearing house (A) for the purpose of covering losses arising in connection with defaults by recognised clearing houses or recognised investment exchanges other than A or by any of their members, and
ii
may be applied for that purpose under A’s default rules; or
d
contribution by a recognised investment exchange to a fund which —
i
is maintained by a recognised clearing house or another recognised investment exchange (A) for the purpose of covering losses arising in connection with defaults by recognised investment exchanges or recognised clearing houses other than A or by any of their members, and
ii
may be applied for that purpose under A’s default rules.
.
16
In section 191 (index of defined expressions), after the expression “cover for margin”, insert —
default fund contribution section 188(3A)
.
Amendment of the Financial Markets and Insolvency Regulations 1991
3
1
The Financial Markets and Insolvency Regulations 1991 are amended as follows.
2
After paragraph (1) of regulation 2 (interpretation: general), insert —
1A
In these Regulations “the Recognition Requirements Regulations” means the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001 .
.
3
In regulation 7 (interpretation of Part V), after the definition of “CGO Service member”, insert —
“default fund contribution” has the same meaning as in section 188(3A) of the Act;
.
4
In regulation 10 (extent to which charge granted in favour of recognised investment exchange to be treated as market charge) —
a
at the end of paragraph (1)(a), insert “or over property provided as a default fund contribution to the exchange”; and
b
in paragraph (1)(b), for the words from “the net sum referred to” to the end, substitute —
any sum due to the exchange from a member or designated non-member of the exchange or from a recognised clearing house or from another recognised investment exchange in respect of unsettled market contracts to which the member, designated non-member, clearing house or investment exchange is a party under the rules referred to in paragraph 12 of the Schedule to the Recognition Requirements Regulations
.
5
In regulation 11 (extent to which charge granted in favour of recognised clearing house to be treated as market charge) —
a
at the end of paragraph (a), insert “or over property provided as a default fund contribution to the clearing house”; and
b
in paragraph (b), for “the net sum referred to in paragraph 9(2)(a) of Schedule 21 to the Act”, substitute —
any sum due to the clearing house from a member of the clearing house or from a recognised investment exchange or from another recognised clearing house in respect of unsettled market contracts to which the member, clearing house or investment exchange is a party under the rules referred to in paragraph 25 of the Schedule to the Recognition Requirements Regulations
.
6
In regulation 16 (circumstances in which member or designated non-member dealing as principal to be treated as acting in different capacities) —
a
for paragraph (1)(a), substitute —
a
a market contract, effected as principal by a member or designated non-member of a recognised investment exchange or a member of a recognised clearing house, in relation to which money received by the member or designated non-member is —
i
clients’ money for the purposes of rules relating to clients’ money, or
ii
would be clients’ money for the purposes of those rules were it not money which, in accordance with those rules, may be regarded as immediately due and payable to the member or designated non-member for its own account; and
;
b
after paragraph (1) insert —
1A
In addition “relevant transaction” means a market contract entered into by a recognised clearing house effected as principal in relation to which money is received by the recognised clearing house from a recognised investment exchange or from another recognised clearing house.
1B
In addition “relevant transaction” means a market contract entered into by a recognised investment exchange effected as principal in relation to which money is received by the recognised investment exchange from a recognised clearing house or from another recognised investment exchange.
1C
Where paragraph (1A) or (1B) apply paragraph (1) applies to the recognised clearing house or recognised investment exchange as it does to a member of the clearing house or investment exchange, and as if the clearing house or investment exchange were subject to the rules referred to in paragraph (1)(a)(i).
1D
In paragraph (1), “rules relating to clients’ money” are rules made by the Financial Services Authority, in particular, under section 138 or 139 of the Financial Services and Markets Act 2000.
;
c
for paragraph (2) substitute —
2
For the purposes of section 187(1) of the Act (construction of references to parties to market contracts) —
a
a recognised investment exchange or a member or designated non-member of a recognised investment exchange, or
b
a recognised clearing house or a member of a recognised clearing house,
shall be treated as effecting relevant transactions in a different capacity from other market contracts it has effected as principal.
; and
d
omit paragraphs (3) and (4).
Amendment of the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001
4
1
The Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001 are amended as follows.
2
In paragraph (1) of regulation 3 (interpretation), after the definition of “credit institution”, insert —
“default fund” means the sum of the default fund contributions by the members or designated non-members of a recognised investment exchange to that exchange or by one recognised investment exchange to another or by the members of a recognised clearing house to that clearing house or by one recognised clearing house to another to the extent those contributions have not been returned or otherwise applied;
“default fund contribution” has the same meaning as in section 188(3A) of the Companies Act;
.
3
In the Schedule —
a
in paragraph 10 after sub-paragraph (3) insert —
4
Sub-paragraph (5) applies where the exchange has arrangements for transacting business with, or in relation to common members of, a recognised clearing house or another recognised investment exchange.
5
A recognised investment exchange must have default rules which in the event of the clearing house or the investment exchange being or appearing to be unable to meet its obligations in respect of one or more market contracts, enable action to be taken in respect of unsettled market contracts to which that person is a party.
;
b
in paragraph 12 —
i
in sub-paragraph (1) after “155(2)(b)”, insert “or (c)”;
ii
in sub-paragraph 2(b) after “different contracts” insert “entered into by the defaulter in one capacity for the purposes of section 187 of the Companies Act”;
iii
after sub-paragraph (2)(b), insert —
bb
if relevant, for that sum to be aggregated with, or set off against, any sum owed by or to the investment exchange by or to AP under an indemnity given or reimbursement or similar obligation in respect of a margin set off agreement in which the defaulter chose to participate so as to produce a net sum.
;
iv
for sub-paragraph (2)(c), substitute —
c
for the net sum referred to in paragraph (b) or, if relevant, the net sum referred to in paragraph (bb) —
i
if payable by the defaulter to the exchange, to be set off against —
aa
any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);
bb
to the extent (if any) that any sum remains after set off under paragraph (aa), any default fund contribution provided by the defaulter remaining after any application of such contribution;
ii
to the extent (if any) that any sum remains after set off under paragraph (i), to be paid from such other funds, including the default fund, or resources as the exchange may apply under its default rules;
iii
if payable by the exchange to the defaulter, to be aggregated with —
aa
any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);
bb
any default fund contribution provided by the defaulter remaining after any application of such contribution;
; and
v
after sub-paragraph (2), insert —
2A
In sub-paragraph (2), “margin set off agreement” means an agreement between the exchange and AP permitting any eligible position to which the Participant Member is party with the exchange and any eligible position to which the Participant Member is party with AP to be taken into account in calculating a net sum owed by or to the Participant Member to either the exchange or AP and/or margin to be provided to, either or both, the exchange and AP.
2B
In sub-paragraph (2) —
“AP” means a recognised clearing house or another recognised investment exchange of whom a Participant Member is a member;
“eligible position” means any position which may be included in the set off calculation;
“Participant Member” means a person who —
is a member of the exchange;
is a member or participant of AP; and
chooses to participate, in accordance with the rules of the exchange, in such agreement.
2C
The property, contribution, funds or resources referred to in paragraph (2)(c), against which the net sum is to be set off (or with which it is to be aggregated) are subject to any unsatisfied claims arising out of the default of a defaulter before the default in relation to which the calculation is being made.
;
c
after paragraph 12, insert —
12A
The rules of the exchange must provide that, in the event of a default, any default fund contribution provided by the defaulter shall only be used in accordance with paragraph 12(2)(c)(i) or (ii).
;
d
in paragraph 14 at the end insert —
or the default of a recognised clearing house or another recognised investment exchange
;
e
in paragraph 15(1), at the end insert, “other than a client account of the defaulter.”;
f
after paragraph 15(2), insert —
3
For the purposes of this paragraph, “client account of the defaulter” means an account held by the exchange in the name of the defaulter in which relevant transactions effected by the defaulter have been recorded.
4
In sub-paragraph (3) “relevant transaction” has the same meaning as in regulation 16(1) of the Financial Markets and Insolvency Regulations 1991.
;
g
in paragraph 24 after sub-paragraph (2) insert —
3
Sub-paragraph (4) applies where the clearing house has arrangements for transacting business with, or in relation to common members of, a recognised investment exchange or another recognised clearing house.
4
A recognised clearing house must have default rules which in the event of the investment exchange or the clearing house being or appearing to be unable to meet its obligations in respect of one or more market contracts, enable action to be taken in respect of unsettled market contracts to which that person is a party.
;
h
in paragraph 25 —
i
in sub-paragraph (1)(b), after “different contracts” insert “entered into by the defaulter in one capacity for the purposes of section 187 of the Companies Act”;
ii
after sub-paragraph (1)(b), insert —
bb
if relevant, for that sum to be aggregated with, or set off against, any sum owed by or to the clearing house by or to AP under an indemnity given or reimbursement or similar obligation in respect of a margin set off agreement in which the defaulter chose to participate so as to produce a net sum.
;
iii
for sub-paragraph (1)(c), substitute —
c
for the net sum referred to in paragraph (b) or, if relevant, the net sum referred to in paragraph (bb) —
i
if payable by the defaulter to the clearing house, to be set off against —
aa
any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);
bb
to the extent (if any) that any sum remains after set off under paragraph (aa), any default fund contribution provided by the defaulter remaining after any application of such contribution;
ii
to the extent (if any) that any sum remains after set off under paragraph (i), to be paid from such other funds, including the default fund, or resources as the clearing house may apply under its default rules;
iii
if payable by the clearing house to the defaulter, to be aggregated with —
aa
any property provided by or on behalf of the defaulter as cover for margin (or the proceeds of realisation of such property);
bb
any default fund contribution provided by the defaulter remaining after any application of such contribution; and
; and
iv
after sub-paragraph (1), insert —
1A
In sub-paragraph (1), “margin set off agreement” means an agreement between the clearing house and AP permitting any eligible position to which the Participant Member is party with the clearing house and any eligible position to which the Participant Member is party with AP to be taken into account in calculating a net sum owed by or to the Participant Member to or by either the clearing house or AP and/or margin to be provided to, either or both, the clearing house and AP.
1B
In sub-paragraph (1A) —
“AP” means a recognised investment exchange or another recognised clearing house of whom a Participant Member is a member;
“eligible position” means any position which may be included in the set off calculation;
“Participant Member” means a person who —
is a member of the clearing house;
is a member or participant of AP; and
chooses to participate, in accordance with the rules of the clearing house, in such agreement.
1C
The property, contribution, funds or resources referred to in paragraph (1)(c), against which the net sum is to be set off (or with which it is to be aggregated) are subject to any unsatisfied claims arising out of the default of a defaulter before the default in relation to which the calculation is being made.
;
i
after paragraph 25, insert —
25A
The rules of the clearing house must provide that in the event of a default, any default fund contribution provided by the defaulter shall only be used in accordance with paragraph 25(1)(c)(i) or (ii).
;
j
in paragraph 27 at the end insert —
or the default of a recognised investment exchange or another recognised clearing house
;
k
in paragraph 28(1), at the end insert, “other than a client account of the defaulter.”; and
l
after paragraph 28(2), insert —
3
For the purposes of this paragraph, “client account of the defaulter” means an account held by the clearing house in the name of the defaulter in which relevant transactions effected by the defaulter have been recorded.
4
In sub-paragraph (3) “relevant transaction” has the same meaning as in regulation 16(1) of the Financial Markets and Insolvency Regulations 1991.
.
Dave Watts
Steve McCabe
Two of the Lords Commissioners of Her Majesty’s Treasury
31st March 2009
Pat McFadden
Parliamentary Under Secretary of State
Department for Business Enterprise and Regulatory Reform
1st April 2009


text:
Citation and commencement
1
This Order may be cited as the Solicitors’ Recognised Bodies (Amendment) Order 2009 and comes into force —
a
as to article 2(3)(c), on 1st October 2009;
b
otherwise, on 31st March 2009 immediately after sections 9 and 9A of the Administration of Justice Act 1985.
Amendments to the Solicitors’ Incorporated Practices Order 1991
2
1
The Solicitors’ Incorporated Practices Order 1991 is renamed the Solicitors’ Recognised Bodies Order 1991 and is amended as follows.
2
In article 1 (Citation and commencement) for “Solicitors’ Incorporated Practices Order 1991” substitute “Solicitors’ Recognised Bodies Order 1991”.
3
In article 3 —
a
omit “corporate” and “the Council of” from the definition of “recognised body”;
b
in the definition of “member” insert “or who is a partner” before “of a recognised body”; and
c
in the definitions of “holding company” and “subsidiary” for “Section 786 of the Companies Act 1985” substitute “section 1159 of the Companies Act 2006 ”.
4
In Schedule 1 —
a
omit the entries relating to the statutes and statutory instruments listed in Schedule 1 to this Order;
b
in the entry relating to section 146(2) and (4) of the Consumer Credit Act 1974 substitute “1974” for “1947”; and
c
insert the following entry at the end of the list of statutes which apply to recognised bodies —
1996 c. 52 Housing Act Sections 30(2) and 47(2)
.
5
In Schedule 2 —
a
omit the entries listed in Schedule 2 to this Order; and
b
insert the following entry at the end of the table of “Statutory Instruments Which Apply to Recognised Bodies With Additions, Omissions and Modifications” —
Reference Title Extent and modifications
S.I. 1999/728 Prison Rules Rule 2(1) – in the definition of “legal adviser”, in relation to visits to a prisoner, “solicitor” shall not include a recognised body but “a clerk acting on behalf of his solicitor” shall include a clerk acting on behalf of a recognised body. In relation to correspondence, “solicitor” shall include a recognised body.
.
Amendments consequential upon the Legal Services Act 2007
3
Omit the word “corporate” in the definition of “recognised body” in the following provisions —
a
article 2 of the Solicitors’ (Non-Contentious Business) Remuneration Order 1994 ; and
b
article 7(3) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 .
Signed by authority of the Lord Chancellor
Bridget Prentice
Parliamentary Under Secretary of State
Ministry of Justice
5th March 2009