Private ‘open access’ train operators are creating a crisis for the entire railway – threatening billions of taxpayers’ money, as well as timetable planning and operational performance on the East Coast Main Line.
This is due to unprecedented numbers of open access applications and aggressive lobbying attempts from private companies like First and Arriva, which are trying to take advantage of profit-friendly conditions by forcing through new contracts before the railway is brought into public ownership.[1]
The entire railway’s timetable is now at risk, with Network Rail making ‘Formal Declarations of Congested Infrastructure’ on the East Coast Main Line (ECML), warning that there will be severe repercussions for passengers if any more applications are signed off.[2]
However, the rail regulator Office of Rail and Road (ORR) has completely ignored these warnings and is still pressuring Network Rail to support applications, creating a major stand-off between the two public bodies.[3] It has already signed off one ECML open access contract extension until 2038, locking in the taxpayer for a further ten years. The application, from Grand Central Trains/Arriva, was signed off by the ORR in the space of one day, without government approval, and without even conducting a value for money test.[4]
The Department for Transport (DfT) is failing to step in to prevent this pending crisis, and concealing vital cost impact assessments on open access, including evidence it will waste billions of taxpayers’ money over the next decade if it continues- over £1.1 billion on the ECML alone.[5]
This report on the Open Access Crisis demands that the ORR immediately stops processing applications, and DfT completely repeals all open access/competition law from the future Great British Railways (GBR).
Threat to the taxpayer
The ORR has also ignored several strong warnings from the Department for Transport (DfT) on the economic threats posed by open access. In January, the Transport Minister wrote a formal letter warning of the threats posed to the value of public money, followed by an objection in February to eight out of nine open access applications.[6]The DfT then made clear in its February consultation on new primary legislation for Great British Railways that it considers the current ‘access and use’ policies completely discredited, emphasising the failures on the ECML.[7] In that consultation, the DfT stated it would only acknowledge access arrangements until 2029, a deadline ORR immediately breached by signing off the ten-year extension for Grand Central Trains. In March, Network Rail made its strongest possible objection with the ‘Formal Declarations’, and in April, the publicly-owned operator LNER produced a report finding that continuing with open access on the ECML could waste over £1.1 billion over the next decade.
The economic dangers of open access are beyond dispute. 1) Value Abstraction: operators compete directly with publicly funded operators for fares, with ORR currently signing off contracts according to a test that allows up to 70% of the revenue of a new open access service to be abstracted from existing services.[8] 2) Wasted Subsidy: open access operators get further ‘indirect subsidies’ because they do not cover the costs of infrastructure and other central support services provided by the railway. The Minister for Transport herself recently complained that ‘taxpayers are left to fill the shortfalls.’ 3) Undermining the value of public investment: for example, in infrastructure improvements and new rolling stock. The government stated in its February consultation that the long-delayed ECML timetable change is responsible for undermining the value of £4 billion investment.
Office of Rail and Road working against the public interest
As Britain’s rail regulator, the ORR is supposed to protect safety, passenger rights and the value of public money. Yet, despite being fully informed of the dangers to rail performance and economy, it is still pushing the agenda of private companies – even against the objections of Network Rail and the government itself. The current regulatory framework and economic role of the ORR has collapsed in this unprecedented situation, where, in the context of aggressive lobbying and legal threats from private companies, it is now making decisions that go actively against the public interest.
The ultimate cause of all these issues is competition law, which creates severe restrictions on taxpayer value, rail integration and the socioeconomic/public interest. Under the current rules, the ORR’s role is overbalanced by its ‘competition duty’, which actively prevents it from favouring the public interest in its decisions as this would be seen as ‘prejudice’ and ‘discrimination’ against the interests of private companies. This includes a duty not to impose ‘unreasonable costs’ on train operators which filters through to all of ORR’s other regulatory functions.
These restrictions run throughout the Railways Act 1993, including the Competition Act 1998, the Access and Use Regulations 2016, the competition function of the ORR, and the role of the Competition and Markets Authority (CMA). Currently, the DfT intends to continue with all of these restrictions in some form, which creates the biggest threat of all – to Great British Railways and the long-term future of the railway.
Threat to Great British Railways
The DfT is currently drafting the legislation for Great British Railways (GBR), the new public body that is supposed to integrate the railway’s entire Profit and Loss accounts – over £12 billion per year of taxpayers’ money. Yet, in February, it dropped its longstanding ‘socioeconomic duty’ from the plan, thought by the previous government to be a key factor in protecting the value of public funding. Central commitments to accessibility and environment were also dropped, replaced by a ‘streamlined’, competition-friendly model.[9] DfT has provided no economic justification for its proposal and is currently concealing all cost impact assessments and organisational design plans for GBR, leaving the details to be fought out behind closed doors. The ultimate prize for the private companies like First and Arriva is a competition-friendly organisational design for GBR and strengthened competition regulation in the new system.[10]
It is fundamentally impossible to protect the value of public money while also protecting the ‘rights’ of private companies to profit. Currently, this perverse principle applies to every part of the railway’s decision-making, including Network Rail’s. If retained, competition restrictions would even apply to the timetabling decisions of the future GBR; with ORR able to overturn decisions if it thinks GBR is favouring the public interest and ‘discriminating’ against private companies.
A fragmented financial framework restricting taxpayer value
While competition duties remain, it will be necessary to separate financial accounts between infrastructure and operations, including severe restrictions on cross-subsidy, meaning GBR cannot make use of its own profits to fund and grow other areas of the network. This also means that the separated parts of GBR would be limited from collaborating with each other, and under strict conditions of commercial confidentiality even between the publicly-owned companies, since this would otherwise be seen as ‘market dominance’ and ‘anti-competitive’ behaviour.
If private companies get their way, we will see – a split between GBR’s infrastructure and operational arms; as well as a three-way split in its ticket retail functions between the main GBR body, a GBR ticket retail arm, and a further split of the third-party ‘licensing’ function. Lobbyists are even demanding that the ticket retail licensing function moves from the Rail Delivery Group to the ORR, which would collapse its public interest duties even further.
Demanding the repeal of all competition clauses
Any presence of an ‘open access’ market for rail in the future GBR – even just 1% of services – will restrict timetable integration and limit socioeconomic value for the entire railway. Competition law restrictions would cause disproportionate damage to the new public body before it has even begun, because its fundamental organisational design will be structured to favour the ‘equality’ of private companies. This is undoubtedly the reason that the DfT dropped socioeconomic, accessibility and environment duties from the new GBR proposal – in fact, this competition vs socioeconomic conflict has been the central obstacle to rail reform since the original GBR White Paper of May 2021.
The only way to achieve an integrated railway is the repeal of all competition clauses from rail legislation and the removal of the competition function of the ORR. The ORR must be reformed as a fully ‘public interest’ regulator, responsible only for: safety, accessibility, passenger rights and rail performance.
[1] There are currently 13 open access applications awaiting a decision from the ORR, with the latest bid submitted by First Group just last week (6 June 2025).
[2] On 14 March 2025, Network Rail made three ‘Formal Declarations of Congested Infrastructure’ on the ECML, available to view here; and a ‘General Representation on the ECML’ to ORR, which predicts dire performance outcomes for the ECML even without the additional open access applications.
[3] See the full record of correspondence from 24 April 2024, on the ORR webpage: ‘Competing track access applications: Information on how competing and complex applications for the Dec 2024, May 2025 and December 2025 timetable changes will be considered.’
[4] Ignoring Network Rail’s warnings, on March 26, ORR approved Grand Central’s application for a ten-year extension of its current contract until 2038 – speeding this through in the space of one day without even performing a value for money test. The DfT had stated in its February consultation on Great British Railways that it would honour open access agreements only until 2029. (GBR consultation, p 29, para 3.31).
[5] The report “Impact of Open Access Operations on LNER” (10 April 2025) is being withheld by the government, despite being demanded in parliament and exposed in the Sunday Times.
[6] DfT, ‘Secretary of State for Transport’s expectations for how open access will operate’ (6 Jan 2025); Rail Magazine, ‘DfT opposes eight out of nine open access applications citing revenue and performance concerns’ (10 Feb 2025).
[7] DfT, GBR consultation document (18 Feb 2025). See pages 24 – 32.
[8] ORR, Summary guidance on rail open access applications (2 Dec 2024).
[9] ABC, DfT drops main public interest duties from GBR (24 Feb 2025); ABC, GBR under threat from Private Companies: Part One (16 May 2025).
[10] ABC Parliamentary Briefing (23 May 2025), direct download.
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