2020 round-up

The events of 2020 and all the additional work which this has generated in terms of setting up online courses and so forth has caused me to neglect this blog somewhat and a number of cases and issues have begun to accumulate which I want to address. As you may have gathered by now I like to tackle these issues in detail and really get down to the nuts and bolts of decisions. In model railway circles anyone with an obsession with the absolute accuracy of a model locomotive  is referred to as a ‘rivet counter.’ I have to admit that I am somewhat of a rivet counter when it comes to the legal issues associated with the railways which means that it can take a long time for me to produce a post. So, rather than spending several months producing separate posts on the aforementioned issues I have decided to kick start 2021 with a much less detailed roundup of some of the rail law issues which arose in 2020, some of which may carry over into 2021 in any case. I then propose to return to some, if not all, of these issues in due course with more detailed analysis.

Franchising – and the end thereof as we know it?

The Williams Review

One of the many stories which has been shoved out of the media spotlight by the Covid-19 pandemic is the Williams Review on the future of rail.  The Williams Review was launched on 20 September 2018 with the remit of thoroughly reviewing all aspects of the industry with a particular focus on its commercial structure and the franchising system. When the Railways were re-privatized under the Railways Act 1993, following decades of post-war public ownership, franchising was chosen as the business model for commercializing the system. The track and infrastructure was placed in the hands of a new corporate organization known as ‘Railtrack‘ (the antecedent of Network Rail Infrastructure Ltd) and the rolling stock was acquired by leasing companies. Under the franchising model, which was chosen after much agonizing, commercial organizations then had to win the right to use those assets to provide services under a competitive tendering process.

The franchising system has been much maligned over its quarter of a century of operation with a number of high profile failures requiring the state to use its powers to step in and take over franchises. To take the East Coast mainline alone, the failure of Sea Container’s Great North Eastern franchise in 2007 was soon followed by the much publicized failure of the National Express franchise in 2009. After a period being run by a state owned company as ‘an operator of last resort’ the franchise was acquired by Virgin Train East Coast (a partnership formed by Virgin and Stagecoach) before that finished prematurely in 2015. For an excellent overview of the franchising problems on the East Coast mainline see Jerry Alderson’s Article for Railfuture, ‘Franchise Failure.’ There are many reasons for these failures which may be explored in more detail in subsequent posts; suffice it to say, ‘overpromising’ may have been a factor in some of these failures. Moreover, successive governments have constantly nibbled away at the commercial freedom of operators and straightjacketed them with increasingly onerous minimum service requirements and so forth.

Matters were brought to a head by the ‘service meltdown across the North and South East‘ which followed the chaotic introduction of the new timetable in May 2018. The then Secretary of State for Transport, Chris Grayling, set up the review in the immediate wake of this debacle. The original plan was for the review to feed into a White Paper to be published in autumn 2019 with reforms taking place during the course of 2020. It soon became clear that Williams favoured a move away from franchising to a concession model which moves the revenue risk from the operator to the government. In fact, in 2018 I published a blog post on an article by Prosser and Butler which strongly advocated such an approach and their work fed into the review. Moreover, the idea seemed to meet with a positive response in Whitehall.

Then, of course, the review was overtaken by events as the COVID-19 pandemic hit. However, rather than causing the government to ‘park’ the issue, the pandemic has hastened reform of the system. Clearly, the already struggling franchising system could not cope with the collapse in passenger numbers brought about by lock-downs and home working requirements. However, the rail system had to be maintained as a vital public service and was thus essentially placed on a wartime footing with the government taking control and absorbing the financial losses. This was initially achieved through the introduction of  ‘Emergency Measure Agreements‘ (EMAs) in March 2020 as the first national lock-down took effect. These were replaced with Emergency Recovery Measures Agreements (ERMAs) in September 2020. However, in a masterful piece of spinning this was promoted as the abolition of the old franchising system and a ‘transitional stage to the new system’ as opposed to a short term emergency measure to alleviate the financial pressures caused by the pandemic. Much was made of the fact that, in return for absorbing the financial impact of the pandemic, operators will have to meet ‘tougher performance targets and lower management fees’ in addition to a range of other reforms. This certainly bears some of the characteristics of the concession model which appears to be the ultimate objective and indeed Keith Williams was reported as endorsing the approach.

Rail Franchising Litigation

The Williams Review coincided with the Rail Franchising Litigation which in many respects exemplifies some of the onerous franchising requirements faced by train operating companies. In this case various train operating companies (TOCs) wished to bid for certain franchises. However, they considered the terms of the proposed franchise agreements to be unduly onerous in that they made the franchisee bear the risk of pensions liabilities. When they submitted their bids on the basis of revised terms which shielded them from these liabilities, their bids were automatically rejected and the franchisor (the Secretary of State for Transport) disqualified them from taking any further part in the process. The Secretary of State pointed to various terms in the invitation to tender (ITT) which stated that the Secretary of State had an unfettered discretion to reject bids which were non-compliant with the terms of the competition. One of the grounds for holding that a bid was non-compliant was where it proposed changes to the franchise signature documents.

The disappointed TOCs challenged this decision on the grounds that it breached article 5(3) of Regulation (EC) 1370/2007 which stipulates that the competitive tendering process must be open to all, fair, transparent and non-discriminatory. The High Court rejected the claim on the basis that the terms of the process were clear from the outset and there was no principle of UK or EU law that limited the size of the risk that  could be passed to a private bidder in a public procurement exercise. It remains to be seen what impact, if any, this decision may have on the outcome of the rail review and it is a theme to which I shall return in due course.

Rights of Way

A while back I published a post entitled Rural crossings and rights of way on the case of The Ramblers Association v Secretary of State for the Environment, Food and Rural Affairs [2017] EWHC 716 (Admin). The post focused on the extent to which Network Rail can resist the dedication of a new right of way across its land on safety grounds. The case locked into the issue of  level crossing safety and the scope of section 31(8) of the Highways Act 1980 which provides that a statutory undertaker can block the creation of a right of way if it would conflict with its duties as a statutory undertaker. Following some fiendishly complicated argument the court found in favour of Network Rail on the basis that there never had been a right of way at the location in question and to dedicate a new one would certainly conflict with Network Rail’s duties as a statutory undertaker, especially in the light of the level crossing closure programme.

There has been another case on a similar theme in which Ramblers Association was distinguished, namely, Network Rail v Welsh Ministers  [2020] EWHC 1993 (Admin), concerning a decision by an inspector to confirm the existence of a footpath across two railway lines near Llandudno junction. A significant aspect of the Ramblers Association case was that, despite there having been considerable evidence of usage, there never had been a public right of way and evidence was adduced to show that there was no right of way when the railway was built. In Welsh Ministers, however, following careful scrutiny of archival evidence, the court accepted the inspector’s view that a right of way pre-existed the building of the railway. This meant that the statutory provisions on statutory authority would not come in to play in that they only relate to the creation of new rights of way which have not hitherto existed.

HS2

One area which I did manage to comment on in 2020 concerned the naturalist and broadcaster Chris Packham’s attempt to seek judicial review of the decision to proceed with the HS2 project in the light of the Oakervee Review on the grounds that there had been inadequate consideration of environmental and climate change issues. The application was rejected by the Court of Appeal, largely on the ground that the report could not be considered in isolation from the planning process as a whole and all the detailed work that had been done on these issues: see Chris Packham loses appeal.

However, there have been a couple of other cases on other aspects of the project which I have yet to comment on.

The Granger-Taylor litigation

The approaches to Euston have created some of the most major design challenges in phase 1 of the project due to the density of buildings, utilities and existing railways. Ms Granger-Taylor lives in a grade 2 listed Georgian villa situated 17 metres from a retaining wall reinforcing a cutting (the Camden cutting) on the existing main line from London to Birmingham. The original London to Birmingham Railway was built by Robert Stephenson and opened in 1837 and is destined to share a terminus (albeit a dramatically expanded one) with its 21st century descendant. HS2 will have to pass through tunnels very close to the retaining wall. This has been a major cause for concern amongst residents in that the stability of the retaining wall was already in doubt. HS2’s original design promised to replace a section of the wall altogether and solve the stability issues. This was dropped in favour of another design which residents feared would not solve the stability issues and could even cause it to collapse entirely with disastrous consequences for properties in the vicinity.

Ms Granger-Taylor sought judicial review of the decision to authorize the new design on the grounds that the threat to her property constituted a breach of her human rights under Article 8 of the ECHR which safeguards the sanctity of the family home: R (on the application of Granger-Taylor) v HS2 Ltd [2020] EWHC 1442 (Admin). The claim was rejected largely on the grounds that it was inconceivable that the defendants would be so reckless as to proceed with a design which could bring about such disastrous consequences. This raises interesting issues regarding the use of Article 8 as a means of challenging engineering design choices and the limited ability of the courts to challenge engineering decisions. I hope to return to these issues in more detail in due course.

Anti HS2 protestors and direct action

Since the 1990s and the halcyon days of Swampy we have become accustomed to attempts to disrupt new road and airport projects with tree top encampments and so forth designed to make it more difficult to clear the land ahead of construction. HS2 has been no exception and we can expect protests to continue throughout the construction phase  despite the fact that an Act of Parliament has been obtained in respect of phase 1, the notice to proceed has been granted and the earth movers have moved in. In case anyone is still in any doubt as to whether the project is really happening they need look only to the emergence of the southern Chiltern Tunnel portals and the assembly of the tunnel boring machines.

Aside from tree top encampments one of the tactics pioneered in the 1990s concerned the construction of tunnels so as to make it difficult to dislodge protestors. This approach has been deployed  at Euston station and has attracted some media attention and at the time of writing attempts were underway to clear the protestors.

The activities of protestors have been the source of some litigation and in particular, the use of wide ranging injunctions aimed at ‘persons unknown’ meaning any as yet unidentified person who may be contemplating trespassing upon a construction site and taking direct action. The validity of such an approach has been endorsed by the courts on a number of occasions and most recently in Secretary of State for Transport v Cuciurean [2020] EWHC 2614 (Ch) concerning trespasses at an HS2 construction site near Kenilworth in Warwickshire. We shall be living with HS2 construction for many years to come and there is likely to be further litigation stemming from protests and attempts to disrupt construction so it is likely that I shall return to this theme in more detail soon.