Northern Ireland regulation

When the UK was part of the European Union, the European Directive 2012/34/EU - the recast of the first railway package (the Recast) - was transposed into UK law and included a number of provisions for charging, access, licensing, enforcement and network statements, including the requirement for the UK to have a single regulatory body for the railway sector.  

The Recast was implemented in Northern Ireland through the Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016 (the NI Regulations). The NI Regulations came into force on 23 January 2017, from which date ORR has assumed a number of economic regulatory functions for rail in Northern Ireland.

The ORR’s role in Northern Ireland includes:

• ensuring that the charges imposed by the infrastructure manager (NIR Networks Ltd) in Northern Ireland for the use of its railway infrastructure comply with the requirements of the NI Regulations;
• monitoring the rail services markets, which we will do through reviewing the Northern Ireland infrastructure manager’s annual network statement and ensuring it addresses any deficiencies we may identify;
• ensuring that there is accounting separation between the infrastructure manager and the railway undertaking (NIR Operations Ltd), which is in accordance with the NI Regulations; and
• acting as the appeal body for applicants who believe they have been unfairly treated, discriminated against, or are in any other way aggrieved or against a decision made by an infrastructure manager, service provider or railway undertaking, in relation to certain matters.

Regulation 31 of the NI Regulations sets out the various duties to which ORR must have regard when carrying out its functions under the NI Regulations.

ORR is not the safety regulator in Northern Ireland. Nor does the Recast give ORR a role in Northern Ireland in licensing, setting access charges, holding periodic reviews of access charges, setting outputs in respect of funding levels, monitoring the delivery of outputs or holding to account.

From 23 January 2017, the NI Regulations give ORR the jurisdiction to carry out certain functions in Northern Ireland. Our key functions in Northern Ireland include:

• Charging for use of railway infrastructure (Regulation 31(2)): ORR must ensure that the charges imposed by the infrastructure manager for the use of its railway infrastructure comply with the requirements of Part 4 and Schedule 2 of the NI Regulations.
• Hearing and determining appeals (Regulation 32): An applicant (as defined in the NI Regulations) can appeal to us if they believe they are being unfairly treated, discriminated against or they are in any other way aggrieved.
• Make or issue regulatory decisions, directions or notices that are binding (Regulations 31, 32, 33, 34 & 36): ORR must be able to enforce a decision, direction or notice issued under the NI Regulations with appropriate penalties.  Powers are provided via the NI Regulations (regulation 38). In consultation with the Department for Infrastructure and other interested parties, ORR must produce a Statement of policy with respect to how it will impose penalties and determine their amount (regulation 39).
• Separation of accounts(Regulation 9) & Auditing (Regulation 35): We must ensure that there is an accounting separation between NIR Networks Ltd and NIR Operations Ltd which is in accordance with the NI Regulations.
• Cooperation with other regulators (Regulation 37): We must liaise and work with other relevant regulatory bodies. These are the Department for Infrastructure in Northern Ireland and the Commission for Railway Regulation in Ireland.
• International passenger services (Regulation 33): We must assess whether the principal purpose of a proposed new rail service is to carry passengers between stations located in different Member States or to carry passengers between stations located in the same Member State. We must also assess the potential impact on existing public service contracts.
• Our ‘controlling’ role means we can require NIR Networks Ltd to address a deficiency we have identified in its:
  • Network Statement;
  • allocation process and its result;
  • charging scheme;
  • level or structure of charges (including the levy of scarcity charges in the case of congested infrastructure); and
  • arrangements for access to its infrastructure and service facilities (including their charges).
• We must also consult, at least every two years, representatives of users to take into account their views on the rail market.

The above list represents a basic summary of ORR’s main functions in Northern Ireland. We have not attempted to capture every task we will undertake.

ORR’s Board has agreed that we will carry out our regulatory role in Northern Ireland in a pragmatic and proportionate manner, undertaking only those functions given to us through the Recast and the NI Regulations. With this in mind and, in accordance with Regulation 31 of the NI Regulations, when carrying out its functions under the NI Regulations, ORR shall have a duty to act in a manner best calculated:

• to promote improvements in railway service performance;
• to protect the interests of users of railway services;
• to promote the use of the railway network for the carriage of passengers and goods, and the development of that network, to the extent it considers economically practicable;
• to contribute to the development of an integrated system of transport of passengers and goods;
• to promote efficiency and economy on the part of persons providing railway services;
• to promote measures designed to facilitate the making, by passengers, of journeys which involve use of the services of more than one passenger service operator;
• to take account of the need to protect all persons from dangers arising from the operation of railways;
• to have regard to the effect on the environment of activities connected with the provision of railway services;
• to have regard to any general guidance given to it, by the Department for Infrastructure, about railway services or other matters relating to railways;
• to have regard to the funds available to the Department for Infrastructure for the purposes of its functions in relation to the railways and railway services; and
• to have regard to the interests of persons who are disabled when performing its duties relating to the services for the carriage of passengers by railway or to station services.

ORR must also ensure that the charges for the use of railway infrastructure imposed by the infrastructure manager comply with the requirements of Part 4 and Schedule 2 of the NI Regulations.

This guidance sets out ORR’s interpretation of The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016 (the NI Regulations), which were amended in 2019.

The purpose of this guidance is to help you understand:

• The meaning and implications of the provisions of the NI Regulations;
• The obligations of infrastructure managers and service providers;
• ORR’s role as an appeal body and power to make directions; and
• Where to find further guidance on specific issues.

We consulted on changes to this guidance to reflect the Implementing Regulation on access to service facilities. We also made changes to the guidance to reflect amendments made to the NI Regulations in 2019.

Below is a copy of our consultation letter, revised guidance, consultation response and conclusions letter.

• Implementing Regulation on Service Facilities: consultation conclusions
  17 December 2019
• Response from Translink - Implementing Regulation on Service Facilities - Consultation on ORR Guidance
  2 August 2019
• ORR’s revised guidance for consultation
  5 July 2019
• Implementing Regulation on Service Facilities: ORR consultation
  5 July 2019

The Railways Infrastructure (Access, Management and Licensing of Railway Undertakings) Regulations (Northern Ireland) 2016 give ORR the power to impose a penalty where a party has failed to comply with a decision, direction or notice issued under those Regulations.

Our economic enforcement policy and penalties statement relating to railway services in Northern Ireland explains our policy for enforcing the NI Regulations.