Preparing for the Railways Bill

Consultation now, with new track access doctrine at the heart of legislative change

The government launched its public consultation on 18th February, ahead of the forthcoming Railways Bill. Transport Secretary Heidi Alexander made an introductory statement in the Commons on 24 February after the preceding week’s recess, while Lord Hendy of Richmond Hill, the Rail Minister, repeated the statement in the Lords.

The intended Bill was presented as part of the Government’s ‘Plan for Change’, with overriding policies for investment and reform, and desired outcomes of growth, more money in people’s pockets, and renewal and new building within Britain.

Reform and integration to strengthen performance and reduce costs

Reforming the railways is presented in the consultation as being central to this, with improved performance, bringing more people back to rail, generating greater revenue and reducing costs. It is intended to replace the fragmentation of the 1993 Railways Act, with a simplified model “built from the ground up to serve its users… A railway that offers a genuine alternative to road travel, combined with a thriving rail freight sector, means cleaner air and less congestion for everyone.”

The consultation sets out the Government’s plans to establish as a new arm’s length body, bringing responsibility for train services and rail infrastructure together into one integrated organisation. “This means most passengers will travel on GBR trains, running on GBR tracks, and arrive at GBR stations – all delivered by a single organisation in line with the clear strategic direction set by government.”

In parallel the Government wants a more customer-focused culture, which for passengers will be strengthened by a “new independent watchdog that will monitor standards, champion improvements, and ensure passengers feel they have a clear voice within the industry standing up for them”.

Key changes resulting from new doctrine on track access

There is much discussion in Chapter 3 with consultation about a better track access model, improving capacity allocation with a single directing mind in the form of GBR, to optimise use of available train paths and improve delivery of intended benefits and financial outcomes. This is core to the objective of railway reform and the purpose of Great British Railways (GBR), and also leads to key changes in the duties of the rail regulator, the Office of Rail & Road (ORR).

“Unlike in the current fragmented system, GBR will have consolidated accountability for planning the use of its rail network. Working to these statutory requirements and rules, GBR will be empowered to assess options, develop solutions, and engage others to reach decisions.”

Rôles of the Office of Rail & Road (ORR)

The guidance and duties that govern the railway regulator, the ORR, “will be reviewed to ensure that they are aligned with the new sector model, as well as allowing the ORR to align with wider government priorities like promoting growth.”

“The role of the ORR in access decisions (under Sections 17-22C of the Railways Act 1993) will therefore be reformed to enable this new role for GBR. The ORR will no longer approve access or direct the sale of access rights for the GBR railway and will not set standard access terms for GBR.” It is intended that there will be a new framework for access charges, with a quinquennial cost apportionment process and non-GBR operators charged fairly and on a non-discriminatory basis. GBR trains will not pay access charges as it is argued that track provision will be an internalised burden directly on GBR.

Details of revisions to ORR’s role in the review of access charges, as in Section 19A of the Railways Act 1993, are set out in the consultation’s Chapter 4. In summary, it is proposed that ORR would be more of an appeals body for access charges.

The ORR’s role as safety regulator will not change. The Government proposes that the ORR will continue to act as competition authority (concurrently with the Competition and Markets Authority) and remain the consumer law enforcement body for rail. Outside of the law and various technical standards associated with these functions, and its reformed roles in access and funding, the licence will be the only mechanism through which the ORR can take direct enforcement action against GBR. It is intended that ORR will retain the same roles as today in licensing non-GBR operators and infrastructure managers, regulating the High Speed 1 line, and acting as Highways Monitor for strategic roads.

Continuing role for the private sector

The consultation endorses continuing vital rôles for the private sector in the new model, “from freight and open access services to ticket retailing, rolling stock and the wider supply chain”. It is intended that “GBR will leverage the best of both the public and private sectors to unlock growth and drive innovation. GBR will follow fair, efficient and transparent processes when allocating access to the network, with a robust set of protections for third-party operators enshrined in law.

A statutory duty to promote rail freight

There will also be a statutory duty on GBR to promote the use of rail freight, recognising the sector’s growth potential and helping to deliver on the government’s commitment to net zero.” There will be an overall rail freight growth target set by the Government. It is not clear if the target will be higher than the non-statutory 75% increase set by the previous Conservative Government.

There would be considerably greater opportunity if some long standing and well-known infrastructure constraints with high BCR were actually funded for improvement, such as the crosscountry bottlenecks for intermodal rail at Haughley and Ely. Also critical is tackling the capacity shortfall on the West Coast Main Line caused by the impact of HS2 Phase 1 where it remerges with the WCML north of Lichfield. Industry estimates are that this could enable the rail freight growth target to be raised to 100-150%. These are matters which simply need investment decisions and Treasury support, not explicitly a new Railways Act!

More devolution opportunities

Devolution is given greater weight in the consultation, with existing devolution settlements protected, while devolved leaders “will benefit from new statutory roles, drawing on their experiences and expertise to manage, plan and develop a network that delivers for communities”. The Government says “we will continue to work closely with these leaders as we shape this role to ensure the benefits of our reforms are felt across Britain. In addition, established Mayoral Strategic Authorities will have a right to request further rail devolution within England, bringing decision-making closer to those who use the railways”.

Next steps and the consultation process

The consultation marks the next milestone ahead of the introduction of the Railways Bill later in this session. The Government wants to hear from passengers, freight customers, industry suppliers and experts, and the public at large. The consultation will run until 15 April 2025. It has a detailed list of questions from page 48, see link here: A railway fit for Britain’s future The Government will supplement feedback on the proposals set out in this consultation through additional engagement with users of the railway (both passenger and freight), rail industry bodies and experts.

More devolution opportunities

Next steps and the consultation process

By Jonathan Roberts, JR Consulting