Much of the newspaper reporting (and DfT press release) on our case has been a little confused; so we now publish the first clear and accurate analysis of the legal situation. Please accept our apologies for not publishing sooner – ABC is volunteer-run by passengers alongside our day jobs, campaigning and daily commuting nightmare; and with the court case and a visit to Parliament we have been extremely busy!
So, what exactly happened on Thursday?
The most important thing to know is that the premise of our entire judicial review application was our first ground: “Delay“. This refers to our argument that the 14 months the DfT has spent deliberating on Southern Rail’s contractual breaches is an “unreasonable delay” – an argument, in other words, for the right of commuters to demand scrutiny of an essential public service in a timely manner.
On Thursday 29th June, the Judge agreed with this principle and gave the Transport Minister Chris Grayling two weeks to produce a final decision on Southern Rail’s defense for its breaches (force majeure). He must now inform GTR of his final decision by 13th July, or permission for our judicial review will automatically be granted.
Though the DfT’s line in the press is that our case was “thrown out of court”, it is clear that this was a significant legal victory, or it would not now form an urgent political pressure on the government; as demonstrated at the Southern Rail Parliamentary debate yesterday.
We will now wait until the 13th July to see if Chris Grayling complies with the Judge’s order – if he does not, our judicial review will go forward.
Why was our case a significant legal victory?
In addition to forcing the Transport Minister to make a final decision on force majeure by 13th July, our case represents a precedent-setting ruling for public interest in contracts between government departments and private companies. There are two outcomes here that should be of great interest to campaigners; as well as equality and human rights lawyers:
- It is at least arguable that there is a public law duty owed to the public by the Secretary of State that franchise agreements are enforced in a reasonable manner (in addition to any contractual or statutory enforcement obligations). Further, Mr Justice Ouseley commented that it was ‘perfectly obvious’ that the provision of public transport through an effective franchise system was undertaken for the purpose of providing a public service.
- It is at least arguable that where a public body issues a policy document (the enforcement policy) it must be implied that decisions taken under that policy must be made in a reasonable time and cannot be left until “kingdom come”. Mr Justice Ouseley said “there is an implied obligation to reach decisions in a reasonable time in all the circumstances of the case.”
The Judge had little patience for the DfT’s argument that this area of law was “not the business of the public” and did not entertain his argument that decisions regarding the relationship between the DfT and GTR “do not have any direct effect on anyone else.”
Best of all, the judge dismissed out of hand the DfT’s claim that the 1,500 commuters who have funded our court case “do not have standing” or “lack interest” in the matter. This in itself is incredibly significant, as the DfT had shamelessly implied in written communication that our non-profit organisation (established at the peak of the Southern Rail crisis last year) was not a ‘respectable’ enough organisation.
Thus, ABC’s judicial review case represents a new legal crowdfunding model that is capable of forcing the government to be accountable to the public when all other democratic mechanisms fail. The Judge did not hesitate to accept our “standing”, and this suggests that campaigns like ours can be even more successful in pressuring government policy in future.
Our Equality Act argument will not go forward, due to a technicality
On this topic, there is one very important clarification to make. The Equality Act challenge involved with this judicial review had nothing whatsoever to do with our ongoing campaigning efforts on driver only operation (DOO); regarding the equality of access breaches occurring at rural and unstaffed stations. Any report of this in the rail media is an error and we will be asking for corrections.
The Equality part of our case was in fact formed of three smaller grounds arising from the first on “Delay” – namely that the DfT’s failure to act on GTR’s breaches of benchmarks throughout 2016 resulted in breaches of the Equality Act on Southern Rail. That is to say, that the extreme overcrowding resulting from these contractual breaches had a discriminatory effect on disabled people attempting to use the railway at that time. Of these three grounds, only one was discussed in court and it was rejected on a technicality.
Is it true that an Equality Act challenge on DOO is still “inevitable”?
It is absolutely still the case that our legal advice from Devonshires (and that of several other pro bono lawyers) is that an Equality Act challenge on DOO is inevitable; and extremely likely to be successful.
Anyone in doubt of this opinion might like to read the original leaked version of the 2-year buried Rail Delivery Group report on disabled access, released exclusively on this blog last week. Ironically, this vital report on disabled access gives us yet another piece of encouraging legal advice on the matter: namely, that an Equality Act challenge on DOO is “highly likely” and (upon success) “likely” to force a change to government policy.
The buried document has since been published by the Rail Delivery Group, yet this controversial report – arguing that Conductors are the best source of assistance for disabled people – has received very little press coverage. Nor have we heard any explanation from the Rail Delivery Group as to why it was suppressed for so long, and why nobody even knew of its existence. The reason for its suppression is almost certainly the strength of its arguments for the full staffing of trains and stations; and its obvious opposition to “clear trends” of destaffing arising from the McNulty report.
Major disability charities have already responded with shock at the suppression of this document, and we have made clear to our disabled members that ABC will support them as much as we can on any legal action they plan to take forward. On this issue, we repeat (for what seems like the hundredth time) that these failures of access occur regularly on Southern Rail, due to there being no second staff member on trains for which disabled people have pre-booked assistance.