The Railways Bill: the role of ORR in appeals

The Railways Bill (the Bill) currently before Parliament, represents a significant reform of the UK rail sector. 

At the centre of the reforms is Great British Railways (GBR), intended to provide a single “directing mind” for the railway. GBR will combine infrastructure management with the operation of most passenger services and will hold a single licence issued by the Secretary of State.

For ORR, the result is a significant change in regulatory function. Its role will shift from substantive decision-maker on network access to monitor and enforcer of a narrower licence and, critically, an appellate body reviewing GBR’s access decisions on judicial review principles. ORR previously issued a discussion document and has since received responses which it is working through to finalise its position (expected in Spring 2027). This article explores the current principles and developing thinking.

Please see our other articles tracking the Railways Bill 2026 and its implications for the rail sector – here.

Regulating GBR - monitoring and enforcement

The Bill will significantly reshape ORR’s role in the rail sector. While ORR will remain the independent regulator of GBR, the balance between its monitoring and enforcement functions will change. In particular, whilst ORR will have a broader (but proportionate) monitoring role, it will have a much narrower enforcement role:

• Monitoring: ORR’s monitoring remit will include GBR’s economic performance and also GBR’s performance of its statutory functions, including managing the network, operating passenger services and fares and ticketing. However, outside of matters within the scope of GBR’s licence, this wider monitoring role does not carry equivalent enforcement powers.
• Enforcement: ORR will monitor and enforce compliance with GBR’s licence, including investigating suspected breaches and issuing enforcement orders where appropriate. Importantly, however, ORR will not have the power to impose financial penalties on GBR. Matters falling outside of GBR’s licence will not be subject to enforcement action but rather ORR’s function on those will be to investigate, engage with GBR and escalate concerns to the Secretary of State (who in turn may issue directions to GBR).

ORR’s existing functions in respect of safety, consumer/competition law and their enforcement are unaffected, as is ORR’s role in respect of operators operating under a non-GBR licence (e.g. freight, open access).

The appeals process

The existing regulatory framework will continue to apply to GBR stations and depots (and associated Regulation 32 appeal rights).  For other GBR decisions, a “person aggrieved” may still appeal to ORR in relation to matters under GBR’s Access and Use Policy (AUP), infrastructure capacity plan, charging scheme and performance scheme, as well as specified individual decisions on access, timetabling, charging and performance. However, ORR expects the standing requirement to reflect the public law “sufficient interest” test (save in respect of timetabling decisions where it is limited to the applicant). This appeal right becomes particularly important in respect of access as ORR’s previous role to approve or direct access and determine access charges on a prior basis is disapplied for GBR.

In respect of these appeals, ORR is to apply the same principles as the High Court on judicial review. ORR envisages a streamlined, predominantly written process, with appellants expected to identify their grounds and supporting evidence at the outset. Appeals will therefore focus on whether GBR acted lawfully, rationally, procedurally fairly and/or in accordance with legitimate expectations, rather than whether ORR considers that GBR reached the best substantive outcome.

Where an appeal is upheld in whole or in part, ORR may quash the decision of GBR, with powers to either:

• send the decision back for reconsideration;
• send the decision back for reconsideration with directions to GBR as to that reconsideration; or
• exceptionally, substitute its own decision only where GBR made an error of law and only one lawful decision GBR could have reached. 

This represents a materially narrower scope than ORR’s current role. Under the existing access regime, ORR has broad scope to weigh its statutory duties and determine the appropriate outcome. Under the Bill, the substantive decision rests with GBR.

Is that enough regulatory oversight?

Reaction to the proposed enforcement and appeal framework has been mixed, for example:

• The Transport Committee considered the ORR’s judicial function as “overly narrow”, given that GBR will allocate access while also operating passenger services which may compete with third-party operators for capacity. It warned that this could undermine confidence and freight growth. Rail Delivery Group further raised concerns that the proposed framework entitled GBR to effectively “mark their own homework”.
• The Government disagreed. Its position is that the standard is essential to preserve GBR’s role as the railway’s directing mind in which the ORR should scrutinise legality, fairness, rationality and compliance with statutory duties and published policies, rather than revisit strategic decisions on network use.

What the changes mean for operators

As proposed, the new regime materially changes the nature and extent of regulatory scrutiny in the rail sector. Under the Railways Bill, ORR’s ability to intervene will be constrained by the narrower public law standard and limited judicial review remedies available on appeal. An operator seeking to challenge a GBR decision will need to identify a public law defect in GBR’s decision-making, by reference to the established grounds of judicial review, rather than simply persuade ORR that a different access outcome would be preferable. 

For operators, the effectiveness of independent regulatory oversight will consequently depend not only on the appeals process itself, but on the robustness of GBR’s decision-making framework and ORR’s ability to scrutinise its application in practice.

ORR expects appellants to provide their critical grounds and evidence at the outset and may reject appeals at an early stage. Although the final deadlines remain under development, ORR intends to prescribe appeal windows and generally expects contractual dispute procedures or any GBR escalation process to be exhausted first (for example, the complaints resolution process set up in the AUP or within GBR Codes).

If you would like to discuss the implications of any matters discussed in this article, please contact Brian Wong or Zachary Bourne or any member of the Burges Salmon rail team.