The dispute between West Coast Railways Ltd and the Office of Road and Rail Regulation (ORR) shows no signs of being resolved despite the the outcome of the judicial review proceedings brought at the end of last year in which the High Court endorsed the actions of the regulator: see R (on the application of West Coast Railway Co Ltd v Office of Rail and Road) [2023] EWHC 3338 (Admin), [2024] 4 W.L.R. 12
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Background
To recap, the proceedings arose from a long running dispute between the parties regarding the need to fit central locking to old ‘slam door’ (officially described as ‘hinged doored’) carriages used by WCR and other heritage rail operators. The safety of slam door carriages was a cause for concern for many years due to the ability for them to be opened when the train was moving or between passenger stops. Added to which the door windows could be slid all the way down (because passengers had to reach through to turn the handles from the outside) meaning that passengers could lean out to a dangerous extent. Some 25 years ago legislation was passed, the Railway Safety Regulations 1999, designed to prohibit the use of such carriages unless they had been fitted with central locking: see regulation 5. Initially, the regulations were motivated by the need to modify rolling stock on South Eastern commuter routes where old mark 1 slam door carriages were still in widespread use. However, the regulator was also given the power to grant exceptions subject to whatever conditions were deemed appropriate (regulation 5 exemptions). For obvious reasons these powers were very important from the perspective of the rail heritage sector which by definition relies upon older rolling stock. For a number of years WCR was granted an exemption certificate on condition that doors were fitted with manual locks to be operated by stewards in each carriage; known as secondary door locking (SDL). Following a number of safety reviews, some specific incidents and general shifts in policy, the ORR revoked the exemption and it was this decision which culminated in the proceedings. The action was unsuccessful for reasons which are set out in detail in my previous blog on the issue: see Jacobite rebellion fails: West Coast Railways lose judicial review over slam-doors. Suffice it to say, the ORR was deemed not to have acted in a disproportionate or unreasonable manner.
Political intervention
Of course, the judgment merely affirms that the actions of the ORR to date were legitimate from a public law perspective and did not go beyond the bounds of what is acceptable. It does not mean that a different approach could not have been adopted within those bounds or that the ORR was compelled to reach the decision which it did. Moreover, it does not mean that the ORR would be precluded from reaching a different decision going forward. Thus, efforts have continued to persuade the ORR to change its stance on the issue. In March of this year WCR made a renewed application for an exemption and also sought a temporary certificate pending the outcome of the main application. This was rejected on 13 March prompting a number of MPs, whose constituencies gain certain economic benefits from the rail heritage industry, to write to the Rail Minister in support of WCR: see Rail Advent 5 April 2024. The letter outlined the scale of the potential economic impact resulting from WCR being unable to run the Jacobite. The letter then sought to challenge the safety issues raised by the ORR and made the assertion (underscored in the letter) that ‘there are no safety reasons to justify a refusal.’ As support for this assertion they set out the following extract from the High Court judgment:-
After inspection on 8 August 2023, the ORR was satisfied that the changes proposed by the claimant were sufficient to address the safety concerns raised by its June and July Inspections. (at para [35])
In addition, the authors of the letter referred to the fact that there have been no serious injuries on any WCR services stemming from the use of hinged door rolling stock. The final substantive point was that WCR had been treated less favourably than those operators who had undertaken to adopt a time-limited programme of works to fit hinged door rolling stock with central locking. This was not regarded as a logical ground upon which to distinguish the position of WCR from other operators: ‘The approach to WCR’s application for a temporary exemption should be based on a safety assessment. It should not be clouded by the fact it has not to date made an application to fit CDL.’ With all due respect to the authors of the letter (not all of whom are still in fact MPs following the outcome of the July 2024 General Election), this is in fact a crucial distinction.
By focusing on the narrow issue of the absence of serious injuries or deaths in the heritage sector to date and whether immediate safety concerns have been addressed, the letter made the mistake of looking at the dispute in isolation from the wider policy issues at stake. In fact, the High Court was clear that the ORR was entitled to interpret the regs as driving towards the eventual withdrawal of all unmodified stock from mainline services requiring operators to instigate time limited programmes to fit central locking. Granted, the original thrust of the regs, as interpreted and applied by ORR policy, was concerned with removal of all unmodified slam door stock from network services; this was duly achieved. However, in the light of subsequent developments the ORR was entitled to revisit the issue of whether the policy should be extended to operators of heritage services on the mainline to whom exemptions had hitherto been granted on a routine basis.
Such were the safety improvements on commuter trains brought about by the Regulations that in 2014, as the Claimant has highlighted, the ORR suggested that Regulation 5 could be repealed. However, two fatal incidents in 2016 and 2018 caused the ORR to re-evaluate the risks posed by the remaining hinged door rolling stock in operation on the mainline. The exercise of discretion by the ORR to extend the prohibition beyond commuter trains to heritage train operators cannot be said to be contrary to the policy and objects of the Regulation in light of the prohibition on hinged doors for all rolling stock, unless they have central locking. (at para [46])
In any event, the letter did not persuade the Minister to intervene and WCR was faced with having to run a summer schedule with far fewer carriages available than it would normally have.
Operating a modified service
Notwithstanding the loss of the judicial review case and the refusal of the ORR to change its stance on the issue, WCR resolved to run what services it could using the limited number of carriages it could get hold of with central locking. This led to some interesting shenanigans on the West Highland Line earlier in the summer as reported in the May edition of The Railway Magazine. In March WCR began operating the Jacobite with four mark 2 carriages fitted with central locking coupled to other non-centrally lockable carriages the doors of which were marked ‘not for passenger use.’ It seems that the doors on the carriages which have not been fitted with central locking are left permanently locked and access to the carriages has to be via the the doors on the mark 2 carriages which are fitted with central locking. A rival operator, the Locomotive Services Group, ran a rival service under the banner the ‘West Highlander’ using class 37 diesel locomotives.
Watch this space
At the time of writing we are still awaiting the outcome of the application for a new long term exemption and the certificate revoking the regulation 5 exemption is still displayed on the ORR website: see Certificate of Revocation. It would certainly be a surprise if the ORR were to change its position now in that it appears committed to an overall policy of fitting central locking to all rolling stock used on the mainline and this approach was endorsed by the High Court. Indeed, the granting of an exemption could well give those operators who have committed to fit central locking cause for complaint.