Recommendation 30

HM Government Rejected

The Government notes this recommendation. The Government recognises the environmental and growth opportunities rail freight provides and is committed to growing this important sector. That is why the Railways Bill contains two duties specifically related to increasing freight on our railways. Not only will the Secretary of State set a freight growth target that GBR must have regard to but GBR, the Secretary of State and the ORR will have a statutory duty to promote the use of rail freight on our network. This means that when GBR is deciding on ‘best use’ of the network, it must consider these statutory requirements and cannot prioritise its own services unfairly ahead of freight. However, the Government disagrees with the Committee’s proposed amendment because if freight operators feel they have been unfairly treated, there is already a robust route of appeal to the ORR within the Bill. The ORR applying judicial review principles when it determines appeals is a deliberate and essential feature of this framework. Applying judicial review principles focuses the appeals process on legality, fairness and consistency with GBR’s statutory duties and published policies, rather than re-running strategic judgements about network use. This strikes the right balance between accountability and effective decision-making. For example, if GBR were to not allocate certain capacity for freight use during the capacity planning stage, an affected freight operator could appeal that decision to the ORR. The ORR would assess whether GBR had acted lawfully and rationally, including whether the decision was compatible with its statutory duties, such as its clause 18 duties which include the duty to promote rail freight. The ORR will also consider whether the decision was consistent with GBR’s other legal obligations, such as the clause 17 duty to have regard to the freight growth target, and whether GBR had followed the process set out in its Access and Use policy. The appeals mechanism therefore supports the Government’s overall aims for rail freight growth: if GBR fails to pay proper regard to its freight duties, or if it fails to comply with its own published policies and procedures in a way that disadvantages freight, we would expect the ORR to uphold an appeal on those grounds. However, GBR must be empowered to act as the access decision maker, or we will not see the benefits of a more coordinated timetable, including fewer delays, more reliable services, or the possibility of new routes. The ORR is there to ensure that GBR has acted correctly, not to be the directing mind in its place. This is the only possible solution to ensuring that decisions regarding access to the network are taken strategically and make the best use of the limited capacity we have. We would like to clarify the Government’s position on open access as part of this response: we have been clear that open access can add value to the network by improving choice and connectivity for passengers and, where an open access application offers this in a way that does not detract from the wider network performance or the public interest, that operator should be granted access. The aim of this Bill is for the best possible railway network – regardless of who runs trains on it. The current position on appeals in the Bill – which upholds that the access decision maker must be GBR – could benefit both freight and open access. Currently open access operators have expanded considerable effort and resources developing proposals for access to the network, many of which have ultimately been rejected by the ORR. Only GBR can review the network holistically with a view to creating more space and deliver for passengers and freight customers across the country. The ORR’s role is to ensure that GBR has done this fairly – not to unpick its decisions without GBR’s whole system view.