Changing conditions of carriage/travel

[tspaul26]

Yes, that is clearly applicable if your ticket entitled you to travel on London Buses, or the Underground or DLR.

But TfL Rail and London Overground are defined in Appendix A as fully fledged Train Companies.

So they aren't "another party" under 4.4, as they are one of the contracting parties to the NRCoT.

True. It just reinforces that the whole situation is a mess.

Indeed, even before the world ended last year, I remember having issues on Metrolink (under the previous NRCOC) when rail tickets were valid on the Altrincham line on Sundays, but Navigation Road had no ticket issuing facilities.

 

[island]

And it is questionable as to whether the face-covering instruction is even within the scope of the Byelaw in the first place.

Indeed. It’s intended for notices such as “don’t go down onto the track”, “don’t open this door”, etc.

 

[Tazi Hupefi]

Indeed. It’s intended for notices such as “don’t go down onto the track”, “don’t open this door”, etc.

That's what the Byelaws may have been used for in the past, but it does not seem ultra vires to me, as the primary legislation (Section 46(1) Railways Act 2005) that permits the Byelaws in the first place essentially explains the various purposes for which Byelaws may be made, one of which is to regulate conduct of people on railway assets.

A plain English reading of Byelaw 12 using standard definitions is the common legal interpretation where particular terms or words are not defined.

You therefore then have to look at:

Is it a reasonable instruction? It's fairly straightforward to understand, and the man on the Clapham omnibus would likely see it as reasonable (up to now). A court will almost certainly find it reasonable, given the other legislation enforcing masks up to now. Sufficient exemptions exist.

Does it relate to safety? Clearly it does, as there is still a legally recognised pandemic.

Is there a notice on or near the railway detailing the instruction? There is a notice published, but I am unaware of the situation at the stations, so this is what may make a defence.

Yes it's covers a broad range of conduct, but I suspect the Byelaw was always supposed to be quite wide and give a degree of latitude. It's certainly in line with the authorising primary legislation.

However, as before, just because the Byelaw 12 notice may be valid, does not mean that it is easily enforceable or not easy to defend.

 

[tspaul26]

Is there a notice on or near the railway detailing the instruction? There is a notice published, but I am unaware of the situation at the stations, so this is what may make a defence.

Technically, it is not a defence: it is a question of whether the constitutive elements of the offence are proven at all.

Does it relate to safety? Clearly it does, as there is still a legally recognised pandemic.

I disagree. It does not in my view relate to safety, but to a question of public health.

the primary legislation (Section 46(1) Railways Act 2005) that permits the Byelaws in the first place essentially explains the various purposes for which Byelaws may be made

Not the right authorising Act for TfL, although it doesn’t make much difference in this case.

Is it a reasonable instruction? It's fairly straightforward to understand, and the man on the Clapham omnibus would likely see it as reasonable (up to now). A court will almost certainly find it reasonable, given the other legislation enforcing masks up to now. Sufficient exemptions exist.

If reasonableness is on the table then it might well be argued that an instruction to wear face coverings with little concrete evidence as to their effectiveness is not a reasonable one to give, especially if done by a layman.

 

[Tazi Hupefi]

Technically, it is not a defence: it is a question of whether the constitutive elements of the offence are proven at all.


I disagree. It does not in my view relate to safety, but to a question of public health.



Not the right authorising Act for TfL, although it doesn’t make much difference in this case.

If reasonableness is on the table then it might well be argued that an instruction to wear face coverings with little concrete evidence as to their effectiveness is not a reasonable one to give, especially if done by a layman.

You would have to be extremely brave to make an argument that this was at least not "related" to safety.

You're making a distinction between public health and safety - which really isn't there. You can improve the public health by introducing safety measures. It only has to be "safety related" - which clearly, by the very nature of what they are asking, I.e. To wear PPE, in the form of a mask, is clearly, in their view, and probably of many ordinary people, safety related.

It's a very weak argument, but one for another topic if you'd like to discuss elsewhere.

If you believe a court is currently going to rule that masks are ineffective, you're barking up the wrong tree entirely. In any event, the argument isn't whether masks are effective, it's whether in view of all of the circumstances, it's reasonable enough to expect people to wear them (who don't have an exemption). Even if they are mildly effective, most will view it was reasonable, even if undesirable.

Regardless, as I keep stating, this is purely theoretical, it's unlikely to be enforced to any real degree, and as advised earlier, it has apparently been withdrawn.

If anyone disagrees with Byelaw 12, the only way you're going to make your point is if you take it to court and find out. So you can think what you like, but anyone who suggests deliberately seeking to test this ought to consider that it's not straightforward whatsoever.

 

[Kilopylae]

Is it a reasonable instruction? It's fairly straightforward to understand, and the man on the Clapham omnibus would likely see it as reasonable (up to now). A court will almost certainly find it reasonable, given the other legislation enforcing masks up to now. Sufficient exemptions exist.

(My emphasis). How about after 19 July?