ASLEF Response – DfT – Williams-Shapps Plan for Rail: legislative changes to implement rail reform

ASLEF's response to the DfT's GBR consultation
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Between 9 June 2022 to 14 August 2022 the DfT consulted on its planned legislative changes to implement rail reforms proposed by the 'Williams-Shapps Plan for Rail' below is ASLEF's response.

ASLEF Consultation Response – DfT – Williams-Shapps Plan for Rail: legislative changes to implement rail reform

  1. The Associated Society of Locomotive Engineers and Firemen (ASLEF) is the UK’s largest train driver’s union representing over 21,000 members in train operating companies, freight companies as well as London Underground and light rail systems.
  2. We welcome this opportunity to comment on the DfT’s plans to introduce legislation to enable the implementation of rail transformation. We have long highlighted the failings of the franchising system and have called for a joined-up approach to the running of our railways with both the network and services run in the interest of the public under the ownership of the public. To this end we were disappointed to see the decision to move to a concession model as well as the continuation of the commitment to renewing contracts with private rolling stock leasing companies (ROSCOs).         
  1. We believe this is a missed opportunity by the DfT to truly organise the railways in a joined up way as the plans continue to fragment the network with private operators still running services. In our view the services should be run by public sector operators to deliver in the public’s interest by keeping the money used to run the railways in public hands ensuring that any surplus funds are kept in the public purse and used to re-invest in the network.               
  1. Despite this disappointment we continue to engage with the DfT to ensure that the voices of our members are heard and we have considered the consultation to ensure that collectively we can deliver the best for our members and the public by working to deliver a successful rail network. 

Q1 Does the scope of the proposed designation of Great British Railways as an integrated rail  body appropriately capture what you would expect for an effective guiding mind for the railways? (paragraph 2.6) Please explain      

  1. The scope of the proposed designation of Great British Railways (GBR) as an integrated rail body appropriately captures nearly everything that we would expect for an effective guiding mind for the railway. The proposed 5 year and 30 year plans are welcome as it is important that all those involved in the railways have an understanding of the medium to long term plans and aims of GBR.  The consultation outlines the desire for the focus of GBR to be customer focused, we would hope that this includes potential customers as well as current customers to ensure that the network continues to grow and entice more passengers with new lines and better rail connections across the country through investment in increased frequency, capacity, new lines, complete electrification as well as an improvement in accessibility. To this end, to ensure growth which delivers in the public’s interest and for customers, there should be a requirement on GBR to develop and grow the railway as part of its core functions listed under 2.7 and 2.8 in the consultation document.        
  1. We note that the plans state that the Secretary of State for Transport would define what constitutes social and economic value. We hope that the definition of social and economic value is decided upon in conjunction with GBR, Transport Focus, ORR, staff and their recognised unions, regional transport bodies such as Transport for the North, metro mayors as well as local businesses to ensure that projects are not cancelled or never started due to the economic value being misinterpreted or weighted unfavourably due to a lack of input from all affected / interested parties. Recent decisions to cut the eastern leg of HS2 and to radically strip back Northern Power House rail plans, has led us to hold concerns as to the measures used by the DfT for social and economic value and we would further expect transparency on any such future decisions outlining where the cuts fit in with the aims to deliver social and economic value.  We want to ensure that one person alone, particularly one who is appointed and could be replaced by the government does not get to define social and economic value without scrutiny or input from others involved in the impacts of their decision making.        
  2. The 2019 Conservative Party Manifesto stated that metro mayors would be given control over services in their area, if this is to be delivered still it should be outlined in GBR’s role as a guiding mind as to where the cross over takes place between the Urban Transport Group, GBR and the Secretary of State in determining where funds are allocated and how much input the / control the metro mayors have. We have seen TfL used as a political football in recent years and we would hope that the metro mayors are supported in their efforts through appropriate funding to deliver services for the public and will not be sidelined at the whim of the current government.
  3. In terms of the scope of the proposed designation, we await to see what shape the strategic freight unit takes, as the consultation and plans make clear we need to ensure that we promote and increase freight on rail to help reduce our emissions and tackle the climate crisis, the strategic freight unit should feed into this. Recent plans to scrap infrastructure projects which would have enabled an increase in capacity for rail freight has proven a concern to us for how serious the commitment to grow rail freight is, we shall reserve full judgement on how true the government’s commitment to increasing rail freight is until the structure, plans and powers of the strategic freight unit are made clear.          
  4. There are currently five Open access operators on the network, it would be our preference for these operators to come under public ownership but as this is lacking from the plans, their planning and services must also be considered.  The guiding mind nature of GBR will have an impact on these companies as they use and access the network, it is important that GBR works to keep these operators on board and involved in planning of the five year business plans to enable the operator, staff and the public that rely on the open access operated services to plan their lives around the clarity on the services that will be expected / delivered in their area.            

Q2 Are there any other factors Great British Railways should balance and consider as part of its public interest duty? (paragraph 2.9) Please explain.      

  1. As part of GBR’s public interest duty we believe it should consider the needs and interest of freight operators too as the movement of freight is in the public interest in the sense of ensuring that the network is used in a way that delivers for passengers still whilst enabling heavy freight to be transported across country on rail instead of in HGVs, creating safer roads whilst tackling the climate crisis.  
  2. We also believe that it is in the public’s interest to bring rolling stock into public ownership and to remove the involvement of the private rolling stock leasing companies who have enjoyed guaranteed income from the public purse since 1993. We would hope that the DfT sees sense on public ownership of stock and looks to phase out the ROSCOs when their contracts expire with the new stock being secured and owned by the public purse, to serve the public interest.
  3. The Liverpool region Metro Mayor Steve Rotherham has shown bold leadership in bringing the latest Merseyrail stock into public hands and we believe that having rolling stock in the hands of the public will ensure that GBR is able to better deliver in favour of the public’s interest. If and when stock updates are needed, public ownership will allow GBR / the DfT to take the steps needed to update and invest in new stock without the ROSCO’s placing barriers in the way or pushing for an outdated stock to be used still so that they can maximise the profit from their investment in the interest of their shareholders over the interests of the public.    

Q3 Do you support the proposal to include a power in primary legislation to enable Scottish and Welsh Ministers to delegate their contracting authority to Great British Railways, subject to the terms of delegation being mutually acceptable to ministers in the Devolved Administration(s) and the Secretary of State? (paragraph 2.17) Please explain.

  1. We are supportive of the proposal to continuing to allow devolved governments the control of the operation of rail under their authorities. It is sensible that primary legislation will be introduced to allow the Scottish and/or Welsh ministers to delegate their contracting authority to GBR. This proposal ensures that there could be a completely coherent contracting authority across Great Britain if the ministers and the Secretary of State believed it appropriate. We would assume that the ministers would be able to end these agreements should the Secretary of State change and the new secretary held different views on what constitutes social and economic value on GBR and was looking to alter the network in ways which did not suit the devolved authorities. Again the power given to the Secretary of State for Transport points to a need for transparency in the process for the Secretary of State determining social and economic value to avoid drastic changes in these values when the post holder changes.       

Q4 Do you have any views on the proposal to amend Section 25 of the Railways Act 1993 to enable appointment of a public sector operator by Great British Railways by direct award in specific circumstances? (paragraph 2.18) Please explain.            

  1.  We welcome the plan to amend section 25 of the Railways Act 1993 but think it could go further. We believe that there should not be bids from private operators to run services as the services should be run by the public sector through direct awards due to the failings of the private sector and the lack of bidders. As the plans are keeping the bidding process we think that public sector operators should be involved in competition bids, we have seen through franchising that it is mostly the same operators with little competition, often times with the private operators failing and with the operator of last resort needing to be introduced on multiple occasions due to their failings.          
  2. At present there are five operators under operator of last resort due to the failings of private operators, whilst the new plans wrongly place nearly all the risk on the public, allowing the private sector operators to take money away from the public purse with less risk than before, we are concerned that the limited number of private operators that get involved with the running of services and their track records of failures could be repeated under the concession model, which in our view shows the need for services to be run by public operators by direct award from the outset.         
  1. The proposals which state that operators should only be public if the contract ends midway through a major infrastructure project or delivery of major industry reform could inadvertently be a regular occurrence as we would hope that the government is continually investing in rail and improving the network. The amended proposals would mean that if a contract ends outside of major industry reform or infrastructure project that the contract would go back to a bid without the public sector being able to bid, in what after all, could prove to be a better for the public interest both economically and socially. The running of the services via a public sector operator would ensure that the money stays in the network and is invested back into the network instead of money being taken away from the network by private firms to be invested in other ventures outside of the UK or to end up in shareholder pockets.             
  1. We also hold concerns that due to the nature of the concession model and the central planning role of GBR, private operators could blame their failings to deliver good services on GBR, it does raise the question if the public is to bear the risk why not allow the services to be run by public sector operators outside of the narrow proposed definition. We would suggest that the amendment goes beyond ‘major industry reform or major infrastructure projects’ and allows public sector operators to bid whenever a bid is opened.           

Q5 Do you support the proposed amendments to Regulation 1370/2007, which are i) reducing the limitation period for the challenge remedy, ii) introducing a remedy of recovery to accord with the new UK subsidy regime, iii) clarifying who may bring a claim, iv) retaining the ability to make direct awards under Article 5(6), and v) clarifying the PIN notice period? (paragraph 2.20) Please explain.           

  1. It is sensible that amendments are made to regulation 1370/2007 due to the sunset clause. The drop from six years to one month to challenge remedy does seem severe, perhaps a move to six months is more appropriate, to enable a challenge, at what would be a time of upheaval for the operator. This would allow a challenge to be made in a timely manner whilst allowing the government the comfort to know that a challenge would not be lodged years later. We understand the desire to bring this into line with the UK Subsidy Regime but it may be appropriate for this to sit outside of the one month window due to the complexities of private operators involved in the rail network.      
  1. We believe it is sensible for there to be clarity in who may bring a claim by stating that they must be ‘interested’ and / or ‘affected’ as this tightens the scope of any potential claims that would have to be dealt with.        
  1. It is important that the ability to make direct awards is kept and this can be delivered by keeping Article 5(6) as is being proposed. An amendment to futureproof this could be to include metro and tramways to the regulation to enable the growth and control of a public rail network connecting light, heavy and metro.            
  1. It is sensible that the PIN notice period is clarified to ensure that there are not any gaps in British legislation after the sunset clause.     

Q6 Do you support the proposed statutory duty on ORR to facilitate the furtherance of Great British Railways’ policies on matters of access and use of the railway, where these have received Secretary of State approval? (paragraph 2.38) Please explain.      

  1. We support the proposed statutory duty on ORR to facilitate the furtherance of GBR policies on matters of access and use of the railway. ORR must work with GBR to ensure that access and use of the railway marries up with the aims and policies of GBR. We do hold slight concerns with the fact that the Secretary of State has authority over it all. When any conflicts around the public’s interest arise, particularly with freight operators, the decision will ultimately be weighted in the Secretary of State for Transport’s favour. We have concerns that this could lead to freight services being sidelined for passenger services due to the public interest in passenger services conflicting with the needs of freight operators to run services and with unknown interest from the public for the need of freight services to tackle the climate crisis.                    
  1. In general with GBR operating as a guiding mind and leading on decisions around the use and operation of the network, the intended plans should work. As long as these decisions are made taking into account the views of ORR and public sector funders, when decisions are made on matters of access and use of the railway which the ORR will be expected to further.     
  1. The proposals will allow the Secretary of State for Transport to guide the ORR to address priorities for simplification, efficiencies and management of the network in the public interest. We would expect transparency from both the Secretary of State and ORR when they are working collectively to address these stated priorities in the public interest, to ensure that any changes actually are in the public interest and not just shortsighted ways to run down and cut staffing on the network.           

Q7 Noting we will consult separately on the use of the power to amend the existing Access and Management Regulations, are you aware of any immediate essential changes that are needed to these Regulations to enable Great British Railways to deliver its guiding mind function? (paragraph 2.44) Please explain.           

  1. We are not currently aware of any immediate or essential changes that are needed to the existing access and management regulations and we await the separate consultation on the future use of these powers.         

Q8 Do you agree with the proposed recasting of ORR’s competition duty to better reflect public sector funding? (paragraph 2.49) Please explain.           

  1. It is understandable that the government is looking to recast ORR’s competition duty to better reflect public sector funding of all rail services, inclusive of access to the track. There is an overlap and potential conflict between passenger and freight access, with freight being wholly private this potential conflict will need to be handled carefully by the regulator.  
  1. We welcomed the acknowledgment that competition in the franchising model was a failure and we are concerned that the concession model could end up following a similar route, as competition is limited at best. We have already seen similar operators indicating an interest in staying involved in the operation of services on our railways under the concession model. We are concerned that the competition will again be limited which is one of the reasons we do not believe that the bidding process is effective nor does it truly produce competition or innovation. With the desire to keep the bidding process, we do however believe that public sector operators should also be able to bid for services.             
  1. The continuation of ROSCOs with limited competition due to the nature of rolling stock contracts and their collection of assets, again highlights the absurdity of the partially privitised model that we will be moving to. The limited competition in both operators and stock owners, with the stated focus on public interest should raise questions around how ORR delivers competition duty taking into account public sector funding when there is limited involvement of a handful of private companies.        

Q9 Do you support the proposal to include in legislation, a power for Great British Railways to issue directions to its contracted operators to collaborate with one another in circumstances where doing so could otherwise give rise to concerns under Chapter I of the Competition Act 1998, in particular, where this could lead to defined benefits to taxpayers and/or passengers? (paragraph 2.54)        

  1. We support the proposal to include in legislation a power for GBR to issue directions to its contracted operators to collaborate with one another in circumstances where doing so would otherwise give rise to concerns under Chapter I of the Competition Act 1998. This proposal is necessary as competition on the railways are hard to deliver on a connected network, particularly when GBR is aiming to plan the whole network effectively in a joined up manner.  As we have seen under franchising, this competition has in part led to an inconsistent service and a disjointed network and GBR will need to ensure this does not continue.      
  1. To deliver a connected network that delivers for the public interest it is essential that there is better collaboration between all parties involved. The proposed 5 and 30 year plans will assist in this but so too will the ability of GBR to compel operators to work collaboratively with one another. This collaborative working will deliver benefits to taxpayers and passengers, it is however a case of squaring the circle to balance private sector involvement in the railways under GBR, when these necessary changes could be avoided through true public ownership.     
  1. Consideration must be given in to how this change to legislation will be delivered with freight operators and open access operators on the network as their collaboration will be necessary to ensure that capacity is maximized. Without the full co-operation there will be barriers to delivering benefits to taxpayers and passengers. To this end the private freight operators and open access operators may hold more business minded concerns with this plan and we will await their responses before further comment. We also await the plan outlined under 2.55 to be published after this consultation.     

Q10 Would Train Operating Companies be willing to share information and collaborate in the way envisaged without the proposed legislative provisions? What are the risks to them without the proposed legislation? Would the proposed legislative approach help to resolve these risks?        

  1. In a network that is truly run in the public interest, train operating companies would be willing to share information and collaborate in the ways envisaged without the proposed legislative provisions, however as there will still be private companies involved it is necessary that these proposed legislative provisions are implemented to ensure that GBR can step in when private operators do not collaborate when it is in the interest of the taxpayers and/or passengers.   
  1. One possible way to deliver this collaboration without the proposed legislative provisions would be to make collaboration a requirement of the GBR license, however it still leaves potential issues due to the conflicts it could present with the competitions act 1998. As such a legislative change is the safest way for the government to ensure collaboration takes place.     

Q11 Are there any particular additional safeguards (in addition to the safeguards outlined in paragraphs 2.54 - 2.55) that you consider necessary to support the interests of third parties (including freight, open access and charter operators) or to otherwise protect passengers and/or taxpayers?     

  1. At present we do not see additional safeguards as necessary to support the interests of third parties or passengers and / or taxpayers as we await the design of the regime outlined under 2.55 of the consultation. It is hard to ensure that the railways deliver for taxpayers and improve efficiency without the collaboration of all operators and we will await the design of the regime to outline how the government plans to juggle the needs, wants and interests of the private and public sector.        

Q12 How should we ensure that Great British Railways is able to fulfil its accountability for the customer offer while also giving independent retailers confidence they will be treated fairly? (paragraph 2.61) Please explain.  

  1. We welcome plans for ticketing to be simplified and brought under one platform controlled by GBR to make the process of booking a ticket more straightforward for passengers with one site run by GBR. At present, when buying tickets online passengers either go direct to the operator’s site or visit a third party retailer which compiles tickets from all operators and usually charges an extra fee. GBR should offer a straightforward system through which passengers are able to buy tickets for all services and GBR will of course have to retail all products including those that may be unattractive to third party retailers. GBR should look to work with open access operators to ensure that ticketing is connected across the whole network and if unable to reach an agreement to sell tickets for open access operators then GBR should at least sign post passengers to the appropriate site to ensure that passengers can purchase or be directed to purchase tickets from one site.    
  1. The fact that the consultation talks about unattractive products should lead GBR in to a further review of ticketing to ensure that rail is an attractive mode of transport for the public. Too often we have seen comparisons between the cost of domestic flights and the same journey by rail with the rail journey being an unattractive option due to cost. The Union Connectivity Review outlined the need to improve the speed, pricing and ultimate attractiveness of rail transport across Great Britain, particularly between London and Scotland, to help encourage a modal shift. The recent axing of the Golborne link has raised concerns around the speed at which attractive services between London to Scotland can be delivered and we await further detailing of the alternative northerly connections between HS2 and the West Coast Main Line which will help to encourage the public on to trains for long distance journeys.            
  1. To satisfy third party retailer concerns it is sensible to allow them to continue to retail tickets alongside GBR. Ultimately GBR should be reviewing its service and working to ensure that it offers an attractive service for passengers with the private sector spurring on innovation to ensure that GBR continues to update its service to continue to offer an attractive platform for passengers whilst continuing to fulfill the customer offer by enabling physical tickets to be bought and for staff to be able to assist passengers when needed in purchasing said tickets, this is an area which current third party retailers fail at as they lack the knowledge or the physical staff at hand to assist passengers, GBR should, as part of its accountability for customers ensure that staff are available at stations and on trains to assist passengers.    

Q13 Does the proposed governance framework give Great British Railways the ability to act as a guiding mind for the railways, while also ensuring appropriate accountability? (paragraphs 3.13) Please explain.                     

  1. It is right that the proposed governance framework builds on those already used in regulated utilities such as highways but alters it to suit the railways. The GBR license will be an important lever in delivering this and allowing GBR to be a guiding mind while also ensuring appropriate accountability, again we await the consultation on the license as the license could outline how much input is deemed appropriate for the Secretary of State to have in setting additional requirements on GBR whilst keeping oversight from ORR.   
  2. When it comes to the involvement of the Secretary of State through the at arm’s-length relationship we would welcome clarity on the DfT’s input when it comes to the operators and their negotiations with their staff and the recognised trade unions. We have seen recent involvement from the Secretary of State which has caused a breakdown in relationship between the staff, operators and DfT as the operators have been hamstrung by the Secretary of State imposing directives on the operators and tying their hands at negotiations whilst refusing to get involved in the negotiations. We would hope that, as the consultation outlines, when any such directives are made it should be transparent and follow a clear process.
  3. Another way to ensure that GBR is able to act as a guiding mind whilst ensuring there is appropriate accountability would be to ensure that there is diversity on the board in both demographic and past work experience terms. Appointments to the board would we assume come under the Public Appointments Commissioner who is obliged to carry out an annual diversity report but to ensure that new ideas and a representative board is in place, GBR could set out an existing duty to ensure that the board is representative of the industry and the wider society that it the network serves, to this end the involvement of workers/ a worker representative on the board could help to ensure that there is appropriate accountability.    
  4. When the license is reviewed and amended we believe that the workers / recognised unions should also be consulted on along with GBR, ORR and Transport Focus.
  5. The five year business plans are a sensible way to align GBR’s plans with a five year infrastructure funding settlement, although we hold concerns that cuts to projects, as we have seen with the Integrated Rail Plan could be shown to fit in with the business plans and allow GBR / the DfT to not show the foresight needed to ensure that rail continues to deliver for future generations with continued investment.   

Q14 Do you agree with the proposal for Great British Railways’ new duties to be captured in the licence and that primary legislation should require the licence to include specific duties in relation to accessibility, freight and the environment? (paragraph 3.16) Please explain.

  1. As proposed the license should capture GBR’s duties with statuary duties to improve accessibility, promote rail freight and consider environmental principles in all of its operations. It is sensible that these are statuary duties as this ensures these matters are taken seriously and there is a commitment to deliver these duties.    
  1. Including accessibility as part of GBR’s statutory duty, should ensure that more accessible stations and services are delivered sooner, this is an issue that we have often highlighted and campaigned for. It is right that the industry continues to work to make rail accessible for all.                 
  1. The inclusion of the promotion of rail freight should also help to focus minds on delivering increased capacity to enable freight on rail to grow and to avoid cuts such as those that we have seen HS2 which have had an impact on the capacity that was due to be created.     
  1. The inclusion of a duty to deliver on the environment should help to increase the speed of electrification and investment in more rail services, this is something that we continue to campaign for and we recently welcomed new electric freight locomotives into service on the network. We need GBR and the government to seriously invest in making the network green and an attractive alternative to domestic flights.            

Q15 Do you support the proposal to amend ORR’s powers to exclude the ability to impose a financial penalty on Great British Railways for licence breach? (paragraph 3.26) Please explain.

  1. We do not support the proposal to amend ORR’s powers to exclude the ability to impose financial penalty on GBR for a licence breach. We believe it is appropriate for GBR to be fined for license breaches and simply relying on the Secretary of State to sanction GBR by exercising corporate and funding controls is not an appropriate replacement to the regulator being able to sanction GBR.  
  1. The plans state that the Secretary of State for Transport will be given powers to consider GBR’s performance when considering performance related pay recommendations, we would expect transparency around how performance is measured and we would expect scrutiny and oversight of the Secretary of State for Transport’s decision making as we have seen under Network Rail.
  1. The plans set out an alternative to the fines imposed by ORR by giving the Secretary of State for Transport the ability to step in and appoint members to the GBR board to fix issues when there are failures of delivery. Whilst it is understandable that this power will be needed to ensure some change is enacted when GBR fails, we would not want this to result in a member of the board being paid off and relieved of their duties whilst the workers left behind have their wages squeezed due to their decisions having a knock on impact to performance related pay, as such the workers could end up being punished for the failings of a board member. Recently we have seen how the Secretary of State has impacted on pay negotiations taking a hardline approach and refusing to be honest with the public and looking to pit the public against rail workers, as such we do hold concerns as to how these powers given to the Secretary of State could end up impacting on failing the public and their interests.     
  1. It is appropriate that GBR can still be fined if it disregards a decision made by ORR relating to access or charging as this would show contempt for the regulator and would cause serious failings in public confidence in the abilities of both ORR and GBR.   

Q16 Please provide any feedback on the proposed business planning arrangements for Great British Railways.      

  1. It is appropriate that ORR stays independent and that GBR updates its business plan based on ORR conclusions. We welcome the introduction of five-year business plans which will hopefully create some certainty around the future of the network as well as allowing freight operators to plan their businesses accordingly.    
  1. The continued involvement of ROSCOs does limit the ability for GBR to create a joined up process and be able to identify and implement changes which would reduce costs. The inability to be truly flexible when it comes to updating rolling stock due to the barriers put in place by private owners does mean that any work to implement changes and reduce costs could end up falling on the workers of the network and not those taking money out of the public purse for the benefit of private shareholders. Ultimately this will harm the public and taxpayers.          
  1. It is appropriate that GBR delivers a plan across infrastructure and passenger services as part of the periodic review process, this will enable GBR to keep the network delivering for the public and amend plans as and when it is appropriate due to the changing demands on the network. 
  1. We support the process for developing, agreeing and amending a business plan that is supported by the GBR license, ensuring that all those involved in the running and use of the network understand what goes in to the business plans and what is expected of them.  It is sensible that memoranda of understanding can be used to support the process and wider governance structures codifying the roles of ORR, DfT and Transport Scotland.            
  1. As the public purse is now more heavily involved in the running and investment of the network we do hold concerns around the process when ORR is not able to agree with the expected levels of funding for infrastructure, we are concerned this could lead to ORR potentially blocking infrastructure if there is no HLOS or SoFA made.       
  1. The proposal to use a change control process to enable GBR to respond to changing circumstances that materialise, whilst maintaining a stable framework is sensible as long as this is delivered with ORR oversight to ensure that any changes are not too severe or diminish the success and/or output of the network.       

Q17 Will the proposed approach to independent scrutiny and challenge provide sufficient transparency and assurance that Great British Railways can be held to account? (paragraphs 3.45 – 3.47) Please explain.         

  1. The proposed approach to independent scrutiny and challenge via the continuation of ORR’s monitoring and enforcement of licenses is sensible, whilst the ability to fine GBR for license breaches is not an option, there will still be the ability to fine GBR for not following conclusions of the independent regulator and there will be the ability to require GBR to comply with its licenses, it is assumed that this will be delivered through oversight from the Secretary of State for Transport.        
  1. The continuation of the ORR to publish statistics for the rail sector helps to ensure that the public and other ministers can hold GBR and network operators to account by ensuring that there is transparency and oversight.  
  2. There are questions to be considered when the Secretary of State for Transport intervenes in GBR matters, via board appointments on directives and as to how independent the scrutiny of these decisions can then be, we would hope that other ministers and the public are able to scrutinise these decisions alongside ORR.     
  1. As the proposals state that ORR is intended to become the ombudsman, we will review this plan and see if that continues to ensure that GBR can be truly held account. As such we reserve our overall view on the proposed approach to independent scrutiny and challenge.

Q18 Do you support the proposal to give ORR a statutory power to levy a fee on Great British Railways to cover the costs of ORR’s functions which are currently funded through the network licence? (paragraph 3.48) Please explain.  

  1. We believe that ORR should be centrally funded by the government in the same way that we believe that other regulators should be funded by the government with fines issued by the regulator used to help fund its work on top of central funding.
  2. We understand the proposal to give ORR a statuary power to levy a fee on GBR to cover the costs of the ORR’s function. If the government is intent on farming out the costs to GBR, then it is straightforward enough that GBR pays a levy to the regulator to enable appropriate oversight and to fund ORR’s expanded role in keeping a check on GBR’s license.         

Q19 Will the proposed changes enable Transport Focus to effectively undertake the role of independent passenger champion in the new rail industry structure? (paragraph 4.8) Please explain.           

  1. The proposed changes should in our view enable Transport Focus to effectively undertake the role of independent passenger champion. Transport Focus are proposed to have a focus on the ‘experience’, this can however be interpreted in multiple ways. Interpretations can be taken such as the ride comfort of a journey, whether or not the journey is on time, the presence of staff on a service etc. So the focus on ‘experience’ does create a broad scope for Transport Focus to cover and we hope that they are able to cover all aspects of the passenger experience, inclusive of the importance that staff at stations and on the network play in to the passenger experience and we would expect GBR and the DfT to take into consideration the views of Transport Focus and the public at large.             
  1. The extension to allow Transport Focus to make representations to the organisations that are providing services to passengers is sensible as this ensures that Transport Focus is able to effectively make representations for passengers.          
  1. We also believe it is appropriate to keep the role and scope of London Travel Watch the same.   
  2. We would also hope that the balance between championing passenger needs /wants  and the needs/wants of freight operators is balanced to ensure that freight is not side-lined by the proposed changes to Transport Focus, the creation of the strategic freight unit should ensure that freight operators are able to make their representations effectively.    

Q20 How can we ensure that accessibility is integral to Great British Railways’ decision making and leads to cultural change in the rail industry? Please explain.    

  1. As has already been outlined, there are plans for the license to capture GBR’s statutory duties and one of these is accessibility. Having accessibility as part of the GBR license will ensure that accessibility stays an integral part of GBR decision making as ORR will have oversight on the deliverance of these licensee, this should help to focus minds in making the network truly accessible. As we have outlined already, accessibility across the network is something we currently campaign for, the proposed roles of ORR and Transport Focus should help to keep pressure on GBR to deliver an accessible network.             
  1. One way that we can ensure accessibility is integral to GBR’s decision making is to listen to the public and organisations representing those with access needs and understanding and valuing the work of train, station and platform staff to assist passengers with access needs. Listening to input from staff and staff side unions can also help to ensure that GBR’s decision making leads to a cultural change in the industry to create a more accessible network.     

Q21 Do you support the proposal to expand DPTAC’s remit to become a statutory advisor to Great British Railways, as well as to the Secretary of State, on matters relating to disability and transport? (paragraph 4.15) Please explain.  

  1. We believe it is appropriate for DPTAC’s remit to become a statutory advisor to GBR, this will further keep the pressure on GBR to deliver on its accessibility duties.  This role as a statutory advisor will offer insight and guidance to ensure that works to make the network accessible truly deliver value for public money by getting the works right the first time.        
  2. There will of course be a cost to delivering the upgrades to the network to ensure that it is truly accessible and we would hope that the proposed changes ensure that DfT/GBR are committed to delivering these upgrades.     

Q22 In addition to providing Great British Railways with powers to make “permitted information disclosures”, are there any other revisions to the Railways Act 1993 or barriers to promotion of open data that you consider need to be addressed? Please explain.

  1. The proposals in their current state cover off what we believe is needed to promote open data on the railways. As long as the recording and sharing of data is standardised across the network and forms part of the operator’s license with oversight from ORR it should ensure innovation can take place. We have seen the high levels of interest in rail which has led to many different projects being run via the open date, from enthusiasts as well as private companies, all looking at multiple ways the data can feed in to multiple projects or pieces of research.   
  2. It is essential that operators share data between each other and are open when there are errors or failings in the system for the safety of the network and to ensure maintenance and investment in the network to address any repeated issues. The consultation outlines plans for open data by default with these being part of the GBR license, we would expect this to extend to any companies which operators do business with in their deliverance of services, this open data by default approach would ensure that any works or plans for investment can be done with a joined up approach, with all involved having sight of the appropriate data and being committed to share data.           
  1. It is important that this data stays open and available to enable GBR to capitalise on any work undertaken by private individuals or organisation to present this data to passengers and the public in a way which may have been overlooked by GBR. This can help GBR to develop its services to deliver for the public when others are able to develop new ways to use the open data.            

Q23 Do you support the proposal to include a power in primary legislation to enable the ratification of the Luxembourg Rail Protocol? Please explain.

  1. We understand the rationale to include a power in primary legislation to enable the ratification of the Luxembourg Rail Protocol as it will help to remove a lot of the complex documentation and structures involved with sourcing rolling stock, particularly now that we have left the EU.       
  1. The protocol should make it easier for funding to be secured to purchase rolling stock which as stated already in this consultation response, would in our opinion point towards the need for rolling stock being under public ownership as this is in the public’s interest.    
  1.  As Brexit has presented an opportunity for the UK government to take control of its future and deliver improvements across the nation, the ratification of this protocol could help to feed in to this agenda. We would hope that there would be a preference to favour manufactures of rolling stock that are based in the UK, using UK produced materials and UK expertise, continuing to use the public purse to fund UK employers to deliver rolling stock for the public. To this end the removal of ROSCOs would further enable the government to deliver a railway that is run in the public interest with any surplus money being reinvested and not syphoned off into tax havens or into the projects of foreign governments to deliver public projects from the profits made off of one of our public services.        

Mick Whelan
General Secretary
77 St John Street