Recommendation 15

HM Government · verbatim extract Acknowledged

The Government partially agrees with this recommendation. The Government disagrees that the Bill needs to be amended to ensure that the relevant policies, standards and commitments could be considered by a court when making a judgement on GBR’s application of its duties. Should a person with a sufficient interest make a judicial review claim against GBR for not complying with the law, the courts would be able to, at their discretion, review all the evidence they considered relevant to determine whether GBR had adequately considered its passenger interest duty in decision- making. This could include any passenger standards set by the Passenger’s Council, as well as any direction and guidance issued by the Secretary of State and GBR’s business plan. We therefore think that the intention of this recommendation is delivered by the legislation as drafted. However, we appreciate that the Committee is also raising a wider point about the importance of the duties to the operation of GBR, and the need to ensure that GBR’s decision making is compliant with them. The Government agrees with this intention. The general duties will be the legal foundation underpinning GBR’s decision-making when it exercises its statutory functions. If GBR fails to appropriately apply these duties when making decisions, it would be acting unlawfully. As a public body, our starting point must be that GBR will follow the law. GBR will be expected to demonstrate how it has considered its general duties via its Business Plan with the Secretary of State signing this off following expert advice from the ORR. However, if GBR was not to appropriately consider its duties, including the passenger interest duty, there is clear sequencing of enforcement action which can be undertaken. The Bill sets out that both the ORR and the Passengers’ Council will monitor GBR’s delivery and its impact: the ORR’s monitoring role in particular is enhanced in the Bill from what it is in today’s system. If either the ORR or the Council thought that GBR was not sufficiently considering its duties they can: a) raise the issue with the GBR Board, b) publish information to “name and shame” GBR and c) escalate to the Secretary of State for consideration and intervention. Upon receiving this advice, if the Secretary of State deems that GBR actions have not appropriately considered its duties, they could: a) speak to GBR’s chair, b) provide GBR with written guidance that they must have regard to, and finally, c) when assessed to be necessary and proportionate, issue a binding direction for GBR to change course. These steps are in addition to any enforcement action taken by the ORR as a result of a breach by GBR of is licence. This means affected passengers or stakeholders would not need to wait for a lengthy judicial review process for enforcement action to take place. The Government’s position is therefore that the existing legislative approach is sufficient to safeguard the duties and to ensure GBR’s compliance with them.