8th Report - Railways Bill

We recognise the need for structural change on the railways. We support the main purpose of the Railways Bill: to establish Great British Railways as a single organisation overseeing both track and train, and capable of acting as a ‘directing mind’ for the railway. (Conclusion, Paragraph 3)

Understandably, and as with previous railways legislation, the Railways Bill gives a partial picture of the framework for a new regime under Great British Railways. The Bill is designed to last a long time and is accompanied by various additional documentation. The unpublished documents are important not just for scrutiny, but for confidence throughout the industry. This inquiry has picked up on issues that may be addressed in future documentation, such as issues of accountability and enforcement, the independence of the Passengers’ Council, and the potential truly to improve on rail accessibility, but this list cannot be treated as exhaustive—there may be other unintended consequences, conflicts or omissions that we are yet to be able to identify. (Conclusion, Paragraph 6)

Before the Bill reaches Report Stage in the House of Commons the Department for Transport should publish a comprehensive list, with target dates, of decisions, key documents and planned consultations leading up to the establishment of Great British Railways and in its first year of operation. This should include milestones for consultation and negotiation with the affected workforce. (Recommendation, Paragraph 7) Our scrutiny of the Bill

Departmental committees have an important contribution to make to scrutiny of legislation, being less adversarial and more specialist than Bill committees, and being able to continue scrutiny of the policy implementation long after the legislation is passed. (Conclusion, Paragraph 9) 32

We urge the Government to consider how best to manage the timetabling of major legislation in the House of Commons to give a reasonable opportunity for relevant departmental select committees to conduct complementary scrutiny. (Recommendation, Paragraph 10) A better railway for passengers

The Government intends that Great British Railways should be a responsible guiding mind: to achieve this, it requires independence and protection from political interference in its day-to-day operations. Clause 7 as currently drafted would permit a future Secretary of State, if so minded, to micromanage GBR through directions. The intention of the current Government that the power only be used sparingly could be reflected in the legislation. (Conclusion, Paragraph 20)

We recommend that clause 7 of the Bill be amended to require that use of the power of direction must be necessary and proportionate. This would preserve the Secretary of State’s power of enforcement over GBR and ability to course-correct on strategic issues, but would prevent micromanagement of its operations. (Recommendation, Paragraph 21)

We welcome the Bill’s provision for a Long Term Rail Strategy. The more clarity that can be given to both the public and private sector about the long-term strategic aims for the railway, the greater the benefits will be in terms of efficiency, planning for rail infrastructure and clarity for the wider economy. (Conclusion, Paragraph 23)

More detail in the Bill on what the Long Term Rail Strategy must include would help to ensure the document is meaningful and useful, and that it gives a measure of clarity and certainty. (Recommendation, Paragraph 26)

There is inevitably a tension between realising the value of a truly long- term strategy and recognising that governments must retain discretion and flexibility. It is essential that the Long Term Rail Strategy does not lose continuity and become in effect a series of short-term strategies. The Bill should be amended to require that the Strategy be laid before Parliament, and that, where the Secretary of State makes substantive changes, it be required to be laid again in its amended form. (Recommendation, Paragraph 29)

We welcome the Government’s original commitment to publishing the draft GBR licence before the Bill leaves the House of Commons. We urge the Government to publish at least an initial draft of GBR’s licence before the Bill’s Report Stage so that the draft can be subject to scrutiny by the House of Commons. (Conclusion, Paragraph 33) 33

There are benefits to unified duties but the Bill is insufficiently clear on how they will operate in decision-making, in particular the weighting to be assigned to each factor. The Office of Rail and Road will enforce GBR’s business plan but is not bound by it. If the Government intends ORR to have regard to detail on how to balance duties that is contained in the business plan, it must put that detail into statutory guidance. (Conclusion, Paragraph 38)

As GBR is accountable to the Secretary of State for fulfilment of its duties, we recommend the Secretary of State issues and publishes statutory guidance on how GBR, at least, should weigh up competing elements of the duties. This will allow for consistency and transparency in decision-making. The guidance must make it clear that cost must be considered proportionately and not outweigh all other considerations. (Recommendation, Paragraph 39)

It is not clear from the Bill how the Secretary of State, GBR and the ORR will be assessed on how they fulfil their clause 18 duties or how the duties will be enforced should they fall short. There is a danger that the Secretary of State’s interpretation of the duties may be overly dominant, which risks impairing the independence of ORR as a regulator. (Conclusion, Paragraph 43)

We are concerned that there is no specific mechanism to assess GBR’s performance against the passenger interest duty placed on it by the Bill. The standards set by the Passengers’ Council will be part of GBR’s licence, enforced by the ORR. The Bill should also contain a mechanism for performance against the relevant standards to be taken into account by a court making a judgment on whether the duty to promote the interests of users in clause 18(2)a has been met. (Recommendation, Paragraph 44)

The Bill should be amended to include a duty on the Secretary of State to set a passenger journey growth target similar to the duty to set a freight growth target in clause 17. A target would incentivise commercially-minded improvements to services. This must not come at the expense of freight, which should be reflected in the Bill. Increasing passenger journeys will help achieve the Government’s aims to support growth and decarbonisation through connectivity and modal shift. It is also fundamental to the purpose of GBR—so seems an odd omission from the legislation. (Recommendation, Paragraph 47)

Standards set by the Passengers’ Council will be a crucial tool in improving the passenger experience of the railways. The Government clearly intends the Council to set such standards, so it is odd that the Bill only confers on it the power to do so rather than requiring this to happen; the Bill should be amended to this effect. The Government’s intention that the Council be able to set standards in areas other than passenger information, compensation, 34 complaints and accessibility should be reflected more clearly in the legislation. The Bill should explicitly state that the Passengers’ Council has discretion to set standards on any other matters it deems necessary for the fulfilment of its statutory duties. (Recommendation, Paragraph 50)

The reliance of the Passengers’ Council on the Office of Rail and Road to take enforcement action could add complexity and delay to an already complicated system for complaints, enforcement and remedies, and we are concerned that an opportunity to streamline these elements of the railway could be missed. (Conclusion, Paragraph 54)

The Passengers’ Council will be required by the Bill to protect passengers’ rights through monitoring operators’ compliance with its standards and receiving, considering and investigating complaints. It must be trusted to carry out that role. We consider it unlikely in the extreme that the Council would find a frivolous matter worthy of referral to ORR for enforcement. The Bill should therefore be amended to require ORR to take action from the range of enforcement actions open to them, unless there is a legal impediment to doing so or the issue has been satisfactorily remedied, within a limited timeframe following a referral of an issue by the Passengers’ Council. (Recommendation, Paragraph 55)

To enhance and help safeguard the independence of the Passengers’ Council, we recommend that the Chair of its board be added to the list of posts for which our Committee is expected to hold a pre-appointment hearing with the Government’s preferred candidate. (Recommendation, Paragraph 57)

The specific inclusion of disabled passengers in the clause 18 passenger duty, and in the duty on the Passengers’ Council in clause 36, are welcome means for improving the rail network’s focus on accessibility through the Bill. The Bill could further support this aim and give the duties teeth by requiring improvement in accessibility. (Conclusion, Paragraph 60)

The clause 18 duty on Great British Railways, the Office of Rail and Road and the Secretary of State, and the clause 36 duty on the Passengers’ Council, should be amended to require these bodies to exercise their functions in a way that improves accessibility of the rail network. (Recommendation, Paragraph 61)

Under the Bill as drafted, GBR is subject to the general Public Sector Equality Duty but not the specific equality duties that support the general duty. The Bill should be amended to add GBR to the list of bodies in schedule 2 of the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017; there should be no need to bring forward separate regulations at a later point to effect this. (Recommendation, Paragraph 63) 35

The Bill should be amended to require that at least two members of the Passengers’ Council board have lived experience of travelling as a disabled person. We see no reason why the Government’s intentions in this respect should not be codified and safeguarded in legislation, given the utmost importance of involvement of disabled people at strategic levels. (Recommendation, Paragraph 65)

The Department for Transport has previously accepted the need to update and streamline the complex and confusing legal framework for transport accessibility. It would be unhelpful were the Railways Bill to add more complexity to this situation, especially if it did not meaningfully add to practical opportunities for enforcement action while doing so. (Conclusion, Paragraph 67)

The Equality Impact Assessment should have been published alongside the Bill to assist parliamentary scrutiny; we look forward to seeing it published as soon as possible. We ask that the Government clarify in that document or elsewhere the intended legal relationship between the clause 18 duty on promoting the interests of disabled people and the anticipatory duty under the Equality Act 2010 to make reasonable adjustments for disabled people to access services. (Recommendation, Paragraph 68) Network access

We welcome the requirement in clause 17 for the Secretary of State to set a target to increase freight on the railways and the duty in clause 18(2)b. We note that the Government is aware of the risk that GBR would not otherwise have an incentive to grow rail freight. The Bill could be strengthened to further support the ambition to increase the use of rail for freight, and to allay concerns about insufficient incentives for GBR to allow freight paths on its network and insufficient certainty for freight-using businesses to invest. (Conclusion, Paragraph 70)

While the Government insists that the intended relationship between clause 60 and clause 63 is clear, multiple stakeholders disagree. The Bill should be amended to make it clear that the capacity duty does not apply until after an infrastructure capacity plan has been developed. (Recommendation, Paragraph 72)

The broad powers in clause 71 for the Secretary of State to alter existing access agreements could have a dampening effect on long-term investment in the railways by giving rise to uncertainty. The Government must consider whether these powers can be revised to provide reassurance to business and industry. The clause should be amended to require consultation with affected parties before regulations are drafted. (Recommendation, Paragraph 74) 36

While the role of open access passenger services is a matter for debate, we note that it is the Government’s clear intention to promote greater freight use of the railway. The appeal mechanism for open access decisions set out in the Bill—applying judicial review principles—is overly narrow and jeopardises this aim. The Bill should be amended to give freight operators the ability to appeal access decisions to the Office of Rail and Road on additional grounds that reflect the outcomes the Government is seeking from an increase in rail freight. (Recommendation, Paragraph 76) Devolution

Mechanisms in the Bill comprising the new statutory role for Mayoral Strategic Authorities (MSAs) could risk being too subject to goodwill. GBR should be required to enter into mayoral partnerships when requested to do so by an MSA whose request meets certain criteria in line with the Long Term Rail Strategy. MSAs should be statutory consultees on the Long Term Rail Strategy, and GBR should be required to give weight to—not simply have regard to—the Local Transport Plans of MSAs and Passenger Transport Executives. (Recommendation, Paragraph 82)

We acknowledge that effective local control over rail services can best be exercised at the level of strategic authorities. It is essential that all parts of England should be able to engage effectively with GBR and, in particular, to hold it to account for its local or regional performance. The Government must ensure that all Local Transport Authorities can receive information from GBR on request, and should investigate a role for MSAs and other LTAs on bodies reflecting GBR’s planned regional business units. (Recommendation, Paragraph 86)

The provisions in clause 5 should be amended to enable GBR to enter into a single arrangement with more than one relevant local government body, to allow for effective co-operation on local services that cross authority boundaries. (Recommendation, Paragraph 87) 37