The Railways Bill: A key piece of the jigsaw

The role of GBR: The Bill establishes the functions of GBR and sets the outline for GBR's relationship with Secretary of State ("SoS"), Scottish Ministers, Welsh Ministers and other devolved bodies.  

The role of SoS: SoS will publish a long term Rail Strategy, and is granted powers to introduce regulations on certain subjects. Section 71 is likely to be the focus of significant attention as it allows SoS to introduce regulations that (amongst other things) amend or terminate existing access agreements. 

Revised duties: The 'duties' set out at Section 18 will be crucial, as they establish the values that will guide the decision making of ministers, GBR and ORR as they exercise their functions set out in the Bill. These duties must be balanced in the manner that the relevant party deems to be appropriate in the circumstances. There are six duties, and they focus on:  

• the interests of the passenger 

• promoting rail freight 

• improving performance 

• encouraging investment 

• promoting the public interest; and  

• promoting efficient use of public funds.   

Strengthening the passenger voice: The Bill provides for a Passengers' Council with a particular focus on accessibility. The council will have powers to investigate passenger issues, set service standards and improvement plans and publish reports.  

GBR policies & plans: The Bill requires GBR to produce various policies and plans that will be key pieces of the rail reform eco-system. GBR will produce policies / plans on the subjects of access, capacity allocation, performance and charging. In doing so, it must consult with various stakeholders and is given broad flexibility to revise these materials from time to time as it sees fit. Stakeholders are given the right to appeal to ORR where they object to a provision, and where such an appeal is successful the relevant matter will be referred to GBR for reconsideration.  

Access: The Bill establishes the basic principles underpinning the access and charging regimes that GBR will establish. GBR will decide applications from non-GBR Operators for access to the rail network, and when doing so must retain sufficient capacity for GBR maintenance, current services and expected future services.  

Charging: GBR's charging regime may introduce different charges for train paths which are scheduled and fully utilised, and those which are scheduled and not  (or only partially) utilised. The default position will be that charges are set at the cost directly incurred as a result of operations. However, premium charges and discounts may apply in certain scenarios.  

The role of ORR: Interested parties may appeal to the ORR regarding the actions of GBR in various circumstances. Where the challenge relates to the content of a GBR document, following a successful appeal the ORR will refer the relevant provision to GBR for reconsideration. Where a challenge relates to a decision made by GBR pursuant to a policy, ORR may quash the relevant decision. It is important to note that other than in Scotland, the ORR must apply the same principles as the High Court would to a judicial review: a high threshold to be satisfied.