Exposing the truth about GTR’s bailout – the ABC court transcript

The ABC Court Transcript

Thanks to generous donations from our supporters, we are now able to publish the full transcript of our oral hearing, and will be forwarding a copy of the following documents to the Transport Select Committee, the National Audit Office and the Public Accounts Committee.

Extract from the court transcript: QC Clive Sheldon offers adjournment compromise

Judgement from Mr Justice Ouseley

Full transcript of the oral hearing

This Court hearing and Judgement have been officially transcribed by DTI Global and made available with the permission of Judge Justice Ouseley. The Crown gives blanket permission for copying and distribution of transcripts for any legitimate criminal justice function and/or for access to personal data. We are sharing these documents for transparency of our members who helped crowdfund both the original case and purchase of the transcript. ABC Limited does not own the copyright – copyright of all transcripts remains with the Crown and DTI Global as the official transcribers.

Our Crowdfunder is open for another 9 days! Please donate if you can – all funds raised will go towards our campaign to seek the truth about the GTR contract.

The history of our case

In September 2016, over two thousand of our supporters came together to raise £50,000 for a Judicial Review of the Department for Transport over the Southern Rail Crisis. Our main ground was the unreasonable delay taken by the Secretary of State in enforcing the GTR contract regarding contractual breaches, which had been under consideration for 14 months at the time of our court submission.

A two and a half hour oral hearing took place on June 29th 2017 and the Judge ordered the DfT to produce the force majeure determinations within two weeks or go forward to a Judicial Review. He made this conditional judgement because of assurances from the QC that the force majeure decision was already ‘imminent’ (a discussion detailed in our court documents above).

The DfT announced their decision on the last day of the deadline – a £13.4 million penalty for performance breaches, going back to GTR’s first breach of contract in July 2015. It wasn’t strictly a fine, however – the money would be reinvested into the GTR network as an ‘improvement package’ – including 50 more onboard staff.

It was not until January 2018’s National Audit Office report that we learned that Govia Thameslink Railway had in fact been permitted to buy out two years of their performance liability at £10 million. This period also covered their future liability for performance, up until September 2018 – thus extending through the period of the May timetable collapse.

GTR fine

The NAO report describes ‘fast moving negotiations’, a ‘rapid timescale’ and ‘verbal decisions’ made in the 14 days after our court case, noting that they had not seen evidence of any formal discussions about the amount GTR would be willing to pay to settle its obligatons. It also states:

“At the time of writing, it is unclear how the Department will incentivise Govia Thameslink to deliver good services for passengers in the future, having removed its ability to use financial performance penalties up to September 2018.” (p.38)

Rail Plan 2020 – a new era of smoke and mirrors?

In the aftermath of the May timetable collapse, there is an urgent need to clarify whether the Department for Transport has any legal standing to enact penalties on GTR for the ongoing chaos and poor performance. We fear it does not, based on comments from David Brown, CEO of The Go Ahead Group, reported by The Times on 7th September.

“Mr Brown said that the rail company would make a robust challenge to any attempt by the government to impose a fine or cancel the franchise as punishment for the fiasco. He insisted that it had not breached its contract.”

However, Peter Wilkinson, the senior civil servant involved in agreeing the deal, assured the Public Accounts Committee in February that there were still performance mechanisms in place despite GTR’s buy out of future liability. (For the full discussion, see the Committee transcript, Q182 – Q194.)

At a time when everyone is focused on placing the blame for the May timetable collapse, we fear that the toxic contractual situation and three year history of rail crisis associated with GTR will be forgotten. Has the Department for Transport in fact given away all the power to its subcontractor, on top of a fatally flawed contract?

PQ grantshapps.PNG

We ask how the Department for Transport can hold GTR to account if it has already given away all its power to enact penalties on the company? How can the ORR provide an ‘independent’ review since they were also on the Industry Readiness Board and are appointed by the DfT? And how can we expect the DfT to act in the public interest if it fears legal action from The Go Ahead Group?

After three years of ‘The Southern Rail Crisis’, we have no faith in the DfT’s leadership, and it seems that hundreds of people agree with us…

Grayling inquiry tweet.PNG

Our Crowdfunder is open for another 9 days! Please donate if you can – all funds raised will go towards our campaign to seek the truth about the GTR contract.

 

New Judicial Review case starts today – led by passenger group Bring Back British Rail

The passenger-led campaign group Bring Back British Rail announced this morning that they have started a Judicial Review on the East Coast and have already dispatched a pre-action letter to the Secretary of State for Transport.

In the letter, they highlighted Chris Grayling’s words to Parliament on 5th February this year when he said that Stagecoach had “breached a key financial covenant” and “Stagecoach [had] got its numbers wrong”. Despite the breach of this “key financial covenant” the Transport Secretary has already decided that Stagecoach may be permitted to run the East Coast franchise again, and has even included them on a shortlist of bidders for the East Midlands franchise.

Bring Back British Rail believe that the franchising farce can’t be allowed to continue. In their letter to Chris Grayling today, their lawyers Leigh Day have asked him to confirm:

  1. that he will revoke the Franchise Passports granted to Stagecoach and/or Virgin and/or suspend them pending a full investigation of what went wrong.
  2. whether the costs of terminating the franchise have in fact been met or could be expected to be met by the fulfilment of Stagecoach’s obligations.

To date, the Secretary of State has failed to answer the second question in full, despite the fact it is crucial for everyone to understand how much Stagecoach and Virgin will have cost us taxpayers.

Bring Back British Rail now aim to raise a minimum of £15,000 in the next 30 days. We’ll be supporting them as much as we can and hope our followers will do the same – you can read more about the case and donate here.

A Recent History of Judicial Reviews in Rail

A Judicial Review of the Department for Transport is essentially the holy grail of transport campaigning. Over the last decade, we have seen the DfT go to great lengths to avoid the scrutiny that such a legal case could provide. If BBBR’s new case is successful, we can expect the smokescreens to finally lift on the practices of the entire department.

2012 – Virgin’s Judicial Review over the west coast franchise

In August 2012, Virgin began judicial review proceedings to challenge the award of the west coast franchise to FirstGroup. Just a month into the pre-action proceedings, the DfT withdrew from their decision, announcing the discovery of ‘significant technical flaws in the franchising process’ and suspending several key civil servants in the process.

The sudden cancellation of the franchise award cost taxpayers at least £50 million and the Public Accounts Committee warned that the cost might be “very much larger”. You can refresh your memory of the PAC Committee’s view of the affair here.

It was this fiasco that led to the Brown Review on rail franchising, which claimed that rail franchising was not in fact broken and made a set of recommendations for its improvement. A short while later, the Govia Thameslink Railway management contract was put together, based on a very radical interpretation of Brown’s recommendations (and leaving 100% revenue risk with the taxpayer).

2017 – ABC’s Judicial Review over the GTR management contract

In the midst of the Southern Rail crisis of 2016, we launched Judicial Review proceedings into the GTR management contract, crowdfunding an initial £25,000. Over six months later, our application to JR was turned down on paper by a single judge. Convinced of the merits of our case, we crowdfunded again to take the DfT to an ‘oral hearing’ on whether the JR case could go forward.

In June 2017, we met the DfT in court and discussed our main ground for JR in the High Court for 2.5 hours. The ground discussed was the delay to the force majeure decision on GTR’s continual franchise breaches since the very beginning of their contract. As was widely reported at the time, the DfT argued strongly that the force majeure decision was already “imminent” and about to go public. In a move that nobody expected, the Judge made a conditional judgment, requiring the DfT to announce their decision within two weeks. You can read our full report of the court case here.

On the final day of the two week deadline, the DfT announced that it was asking GTR to pay £13.4 million in the form of an ‘improvement package’ to go straight back into the company (including hiring an extra 50 OBS staff). In claiming they had fulfilled the Judge’s condition, they then came to us for over £17,000 in costs, which we paid shortly afterwards (narrowly escaping bankruptcy).

In January 2018, the NAO report on the TSGN franchise was finally released, giving the full background to how the force majeure decision had been made. Pages 39 to 41 of the report clearly state that a rushed and ‘verbal’ agreement was made in the days after our court case, in which it was agreed that GTR could buy out two years of their liability – even extending into the future (until Sep 2018). This meant that they could completely avoid ever having to prove the often cited effect of “unofficial industrial action” or “sickness strikes” that they had claimed throughout the course of the Southern Rail Crisis. To date, these claims have never been proven, despite providing the thrust of the DfT’s anti-union messaging.

The man behind this hasty force majeure deal was the MD of Passenger Services at the DfT, Peter Wilkinson. A further investigation into his alleged conflicts of interest had been conducted in early 2017 and had been expected to conclude in the NAO report with an enquiry into the circumstances of both GTR and c2c franchise awards. Though we had previously published the first half of this NAO investigation, there was no mention of it whatsoever in their final publication.

Our inquiry into what happened in court last year is far from over. Please follow ABC on Facebook and Twitter to keep up to date with more revelations coming out this month and throughout 2018!

And please, if you can, support our friends at Bring Back British Rail. Cases like these are always David vs Goliath and they will need all the support we can give throughout this time.

 

 

 

 

The time has come for ABC Phase Two: help us campaign for justice and transparency in UK rail!

After a year of hard work and dedication to the #SouthernFail cause; ABC and its 2,000 financial backers are finally starting to see their efforts bear fruit! On 29th June, we pulled off the biggest democratic check on Chris Grayling yet; in the form of a court decision that forced the DfT to finally decide the issue of Force Majeure – 16 months after their deliberations began.

The resulting £13.4 million fine was enough to satisfy the Judge’s deadline of 13th June, meaning that our judicial review cannot go forward. This money is now being channeled back into Southern Rail in the form of yet another remedial plan – and there is certainly irony in the fact that £5 million of the ‘fine’ is now being used to fund extra staff on Southern Rail, when their well-known understaffing model was a major cause of the service’s collapse in the first place.

We believe that this reinvestment of Govia’s ‘fine’ is nothing more than an attempt to re-balance contract specifications that were so catastrophically conceived that they were bound to fail from the very start. In the words of a recent article in Railway Magazine:

“…the Department for Transport’s desire to merge the Thameslink, Southern and Gatwick Express operations into the biggest rail franchise in history has instead simply created a monster – one that is now out of control.”

There is so much more to do in unravelling the causes of this ongoing rail crisis; and ABC plans to be bigger, bolder and more influential than ever in the next phase of building our non-profit organisation – dedicated to the cause of justice and transparency in all UK transport policy.

We are still crowdfunding to pay our legal fees, survive bankruptcy by the DfT, and fund further legal investigations into: 1) the full Southern Rail franchise agreement; and 2) an Equality Act challenge on driver-only-operated trains. We really need to hit £30,000 in the next 20 days – all of which will go into our legal fighting fund to help us take new actions forward. Please donate whatever you can!

There is so much more to do…

This has been a David vs Goliath battle from the start. Our crowdfunder of September 2016 raised £26,000 – which has been our total legal resource for almost a year. The vast majority of all legal and publicity work has been done on a voluntary and skill-sharing basis among a close network of lawyers, commuter researchers and citizen journalists. To date, ABC has received just one £5,000 grant (from the Foundation of Integrated Transport) – and yet, we have already achieved more than anyone thought possible.

The ABC ‘project’ has never been just about the judicial review case. Our legal action instead formed a backbone to extensive legal, lobbying, publicity and research efforts that will continue exactly as before – and in fact, will only get bigger. We now have an excellent platform from which to promote change in UK transport policy and we intend to use it.

Our innovative “digital DIY” techniques and unique experiments with crowd-sourced investigative journalism have already changed the face of transport campaigning, and this is just the start. What our critics do not realise is that we’ve not only been campaigning on Southern Rail for a year – we’ve also been creating a radical business plan; one that we can’t wait to implement in the creation of “ABC 2.0”. Through collaborative work and grass roots organising, we are now set to take our campaigning model all over the country – at a time when rail passengers have never needed it more.

We urgently need to keep our independence, and continue our work:

In the last two months, we have had some of our biggest successes yet. We have published exclusives on: 1) urgent health and safety concerns at Victoria station; 2) information from the Gibb report, which possibly lead to its release; 3) an RMT offer (declined by GTR) that represented their biggest compromise yet; and most controversially of all: 4) a two-year buried Rail Delivery Group report on disabled access, which strongly argues for keeping the conductor on the train.

All of these issues (and many more) are still being investigated by ABC, and there is much work to do in fully uncovering the truth behind them. This is the reason for our appeal – we must urgently restore our legal fighting fund if we are to have adequate legal support and resources to continue our work.

Every contribution makes a difference – so please donate the price of a train ticket today, and ask a fellow commuter to do the same! Our future is in your hands, and we are forever grateful for the help and support from our community – without it, none of this would have been possible.

We aim to hit £30,000 by 16th August! Please help us by donating here.

Follow us on Twitter and Facebook for all the latest news – and more exclusive releases that the government and rail industry don’t want you to see!

 

 

 

 

 

 

 

Exclusive: Buried report on rail access now available to download

Yesterday, we announced our discovery of a vital report on rail accessibility, commissioned by ATOC (now the Rail Delivery Group) and completed in May 2015. Nobody had viewed or even had knowledge of this document’s existence until now – despite the repeated calls from disabled people, campaigns like ABC and Transport for All, and even the Transport Select Committee; for proper oversight of disabled access during Southern Rail’s chaotic implementation of DOO.

It now seems that over a whole year of calling for impact assessments and a proper, transparent public discussion of the impact of DOO on disabled and older people; a report had already done just that and has been sitting in a drawer at the Rail Delivery Group for the past two years.

What does this mean for our legal case on Thursday?

The most ironic thing of all in the report coming to us at this time is the strong potential for legal challenge it clearly lays out. The Equality Act 2010 is a weak, ongoing process built by case law; and the breach of the Act occurring when Southern Rail runs unstaffed trains to unstaffed stations has already been said by many esteemed commentators and lawyers to be an extremely strong case if we can get it in front of a judge.

We urgently need your help to fund our ongoing investigations and actions and would greatly appreciate even the smallest donation or Facebook share of our Crowd Justice fundraiser.

With the Department for Transport preferring an “outcome-based” rather than a “compliance based” approach to the Equality Act, we believe that they not only exempt themselves from these rules, but rather fear new case law being made that will compel them to comply. The report states it is “highly likely” that this will happen and “likely” that this in turn will have an effect on the legal position regarding the provision of disabled access. It is up to us to make this happen.

A witness statement from last week

Both ABC and Transport for All receive regular, if not weekly, reports of access failures on Southern Rail. Here is the most recent we received; describing an experience that has become all too familiar to disabled passengers:

“I’m a wheelchair user. On the 23rd June 2017 I travelled from London to Brighton. I had booked ramp assistance for the outward journey three days in advance. But booking made no difference: platform staff at Victoria didn’t know about my booking, and when I arrived at Brighton, no one came with a ramp to get me off the train: station staff had absolutely no idea I was on the train. I was very angry. For my return journey, staff at Brighton promised to inform Victoria I was on my way. But on arrival at Victoria, again no one came to assist me with a ramp – no one had informed Victoria I was coming. These are NOT isolated incidents: it happens to me very often, and it’s upsetting and annoying and causes much anxiety. Southern Rail pays empty lip service to accessibility for all passengers, but the reality is that they don’t give a toss and refuse to implement policies and procedures which actually make the promised assistance solidly reliable.”

On Track for 2020? The Future of Accessible Rail Travel

The full report can be downloaded here:

On Track for 2020 – Full report

 

To donate to our crowdfunder, click here.

Follow us on Facebook and Twitter for daily updates.

 

 

 

Exclusive: ABC reveals buried RDG report on disabled access, which strongly advises keeping the guard on the train

Since launching an urgent crowdfunder for our ongoing legal action against the Department for Transport on Monday 19th June, we have received an anonymous package in the post.

The package contained a vital report on rail accessibility, commissioned by ATOC (now the Rail Delivery Group) and completed in May 2015. ‘On Track for 2020? The Future of Accessible Rail Travel’ has been kept under lock and key until now and we release it today in the belief that every disabled and older citizen in the UK has the right to be informed of its contents. It would appear that somebody within the rail industry thought so too.

Our researchers (a group of volunteer passengers) have now studied the report’s contents in depth – and discovered that it contains strongly termed advice about the anticipated effect of the nationwide trend towards DOO (driver only operated trains) on disabled and older people.

What’s so controversial about this report?

The contents of the report represent part of an argument over DOO that has received shamefully little attention by the press and politicians, many of whom have chosen instead to write off the unions’ concerns as “inexplicable”. We can no longer stand for the concerns of disabled and older people to be treated as “niche”; while out-of-context news about a “£75,000 offer” made to drivers is allowed to dominate the headlines.

We point towards the report’s own argument that the economic benefit of providing spontaneous access to disabled and older people actually far outweighs the cost. Of course, the economic argument is only necessary if the moral, societal, and legal ones are not enough! On the legal note, the report includes worrying implications in the statement that the Department for Transport prefers an “outcome-based” rather than a “compliance based” approach towards the Equality Act 2010.

The report supports ABC’s arguments by strongly distinguishing between metro and rural parts of the rail network, and stating that the practice of running unstaffed trains running to unstaffed stations is a breach of the Equality Act. It says definitively: “It is Conductors who are best placed to ensure that assistance is delivered effectively and in accordance with the law.”

Controversially, the report contains extensive discussion of the “clear trends” arising from the McNulty report in regard to de-staffing; and its authors repeatedly note their opposition to prospective policy changes that might allow unstaffed trains to run to unstaffed stations.

Why are we publishing?

It is clear that this is a high quality report, and one that was originally written for the benefit of both policy-makers and those who work on the railway. In addition to this, the near-total exclusion of disabled and older people from the DOO debate has gone on so long that we believe that the public has the right to view its recommendations.

The entrenched industrial dispute could also be solved right now with the provision of a proper”Guard Guarantee” – and this would have the benefit of ending industrial action on the Southern Rail network, just as it enters its second year.

‘On Track for 2020?’ is a comprehensive study and also covers aspects of rail accessibility about which its authors take a positive view. Because we have limited resources to reproduce our paper copies in full; we publish a set of extracts and an early synopsis of those issues around staffing and access that have been most relevant to our members. We also include copies of the report’s contents pages, executive summary and other documents; to redress the balance of our edited extracts, and demonstrate their context.

We have distributed the report to disability rights groups so that they may also contribute analysis according to their own areas of expertise. In addition to this, we will endeavour to produce a full digital version as soon as time and resources allow (unless of course the Rail Delivery Group wishes to respond by releasing the full publication).

Why has this report been buried for so long?

This discovery comes just days after the 6-month-delayed release of the Gibb report; just as journalists and MPs raise calls for a proper analysis of its editing decisions, and the release of the redacted Appendix Nine.

ABC’s disabled members have been very upset that the issue of disabled access was entirely absent from the Gibb Report. This issue has previously been absent from the RSSB report on DOO; as well as recent ORR publications, which focus mainly on the methodology of DOO and may not be providing adequate oversight of the activities of Southern Rail in regard to new staffing practices.

The Transport Select Committee emphasised the urgent need for a disability impact assessment on GTR in their November 2016 report, yet even now our campaign takes regular witness reports from disabled people who have been abandoned on trains and platforms by Southern Rail; often due to the absence of a second member of staff on board.

Ironically enough, the report makes for an excellent endorsement for our current legal case on disabled access, and notes that there is currently “very little case law” and that it is “highly likely that at some point relevant case law will be made”. It also states: “it is likely that case law will in future have an impact on accessibility”.

ABC’s resources are now stretched to the max! Please donate to our legal crowdfunder and share on social media

 

On Track for 2020? The Future of Accessible Rail Travel

Co-authored by Ann Frye Ltd, Rail Accessibility Ltd and MWW Transport Consultants.

Final Report, May 2015

This Report was commissioned by the Association of Train Operating Companies (now the Rail Delivery Group) to consider how accessible Britain’s railway network will be to older and disabled people by 1st January 2020 (the date by which all rolling stock must meet legal accessibility requirements).

Brief overview of the report’s contents regarding DOO and staffing – paraphrased as accurately as possible by the ABC team:

ABC analysis – briefest version

ABC’s own extracts from the report, with analysis

On Track for 2020 – with ABC analysis and extracts

A longer document of relevant extracts, including page numbers and references

On Track for 2020 The Future of Accessible Rail Travel – extracts with page refs and footnotes

Image documents:

Cover page

Contents

Executive Summary

Annex One The Legal Framework

Annex Two Organisations Consulted

Annex Three Project Team

 

To keep up to date with ABC’s latest news and updates, follow us on Facebook and Twitter.

To donate to our legal crowdfunder, or get up to date on our legal news, click here.

 

 

 

 

 

 

 

 

 

 

 

Legal Update: Transport for All to intervene in ABC’s judicial review

Work continues towards our judicial review and we are delighted to announce that the disabled and older people’s charity Transport for All has now asked to intervene in the case. Transport for All have written today to the Royal Court of Justice, to express their interest in submitting further witness statements expressing the full range of assistance failures disabled people have had to deal with during the tenure of Southern Rail.

Like ABC, Transport for All has received dozens of complaints from people experiencing regular failures of assistance on Southern Rail. They are now being represented by Chris Fry of Fry Law on the matter – the very same team behind Doug Paulley’s recent victory for bus accessibility at the Supreme Court.

It is the first time that the Secretary of State’s obligations, as relates to the Equality Act and rail franchising, will come in front of the Court; meaning that the case is very likely to be precedent-setting for rail transport. ABC could not be happier to hear that such a well-respected organisation and law firm will now be joining the case.

With in-depth legal work continuing on the Equality of Access issue, we have also made some minor amendments to the case this month. Such amendments are not unusual in the judicial review process, which is rather less combative than regular litigation. This means that our new deadline for a response from the DfT is now 23rd March. Given this delay, we do not believe the Court will find any further extension requests from the DfT to be reasonable. We feel confident, therefore, that we will have their response by 23rd March, and it will then be a matter of awaiting the Court’s decision on whether the judicial review can proceed.

Statement from Transport for All

Accessible public transport is a life-line to inclusion for many disabled people who disproportionately rely on it to go about their everyday lives. The Southern Rail crisis has caused disruption and misery to disabled and older people, leaving many unable to travel to work and increasingly isolated. Yet throughout the strikes the Department for Transport has remained silent on this issue.

This case would be the first test case to the Secretary of State’s duty to uphold Disability Equality in the franchising process, and could cause a seismic shift in the Department for Transport’s approach to protecting the rights of disabled and older people.

Transport for All hope that our experience in the wide range of obstacles disabled and older people can face when accessing the transport network, and the impact of Southern Rail’s failures on our ability to travel will assist the court when they consider the case.

Transport for All’s accessible transport hotline receives dozens of calls from disabled and older people who find themselves unable to access the rail network because they simply can’t rely on assistance from staff.

“On roughly two-thirds of my journeys, when I arrive at Victoria there is no one there to assist me with a ramp, even though the staff at my home station have phoned ahead to let Southern Rail staff at Victoria know. So I end up stuck on the train” commented Chris Stapleton, a wheelchair user. “The effect of Southern’s unreliable assistance is that every train journey becomes horribly stressful, and every time I arrive at my destination I have a tight knot of anxiety in my stomach – will there be someone with a ramp to assist me? Will I be locked into the train again, or have to get random strangers to go and hunt for staff, or be forced to shout or press the emergency alarm?”

For more information or comment please contact catherine@transportforall.org.uk

Have you been affected by accessibility issues on Southern Rail?

If so, please do get in touch with Transport for All, or email Catherine directly on catherine@transportforall.org.uk.

You can also report your experience to ABC via contact@associationofbritishcommuters.com. We will then let you know when we will be taking further witness statements.

Donations to our legal campaign

Our next round of crowdfunding for the case will open after we receive permission from the Court. In the meantime, we are running a big campaign on very slim resources. If you are in a position to donate to ABC, you can do so here.

BREAKING NEWS: ABC applies to Court for judicial review of the Department for Transport over Southern Rail

We are delighted to announce that we have applied to Court this morning for a judicial review of the Department for Transport’s handling of the Southern Rail management contract. The application to Court is the outcome of our Crowd Justice fundraiser, which raised over £26,000 in September 2016. We have been working intensively on the case for five months already; a process slowed considerably by the lack of transparency shown by the Department for Transport in response to our FOI requests.

Today’s news will be extremely welcome to all our donors, supporters and volunteers; without whose support none of this would have been possible. It is right that our fellow passengers will now play a part in bringing the government to account for the damage Southern Rail has caused to so many thousands of lives.

Legal update

Detailed Grounds have been lodged at Court this morning that address the Department for Transport’s ongoing failure to hold Govia Thameslink Railway (GTR) to account for the long-term breakdown of service on Southern Rail, in regard to two distinct areas:

(1) Delay – we believe the Secretary of State has acted unlawfully by failing to determine and announce within a reasonable time whether GTR is in breach of its franchise obligations; and

(2) Discrimination – we believe that the Secretary of State has failed to comply with his duties under the Equality Act 2010 and has as a result caused indirect discrimination to passengers with disabilities.

These unlawful acts are ongoing. ABC is seeking declaratory relief – i.e. a Court finding that the Secretary of State has acted or is acting unlawfully.

Today’s application to Court is the outcome of five months of hard work; a process slowed considerably by the DfT’s resistance to providing transparency on its contractual relationship with GTR; repeatedly delaying FOI requests, which have only just been completed. Both the Southern Rail management contract and remedial plan remain publicly available only in redacted form and, without transparency, there is no way to clarify the true causes of this unprecedented rail crisis. There has long ceased to be any justification for the Secretary of State’s ‘hands off’ approach to a company that is his Department’s direct contractor.

The application has been lodged and is due to be issued imminently. It will then be served on the Secretary of State who will have the opportunity to respond by filing Summary Grounds of Resistance within a further 21 days. The Court will then consider, usually without a hearing in the first instance, whether to grant leave (permission to proceed to court). If leave is granted, ABC will launch a second crowdfunding campaign to raise sufficient funds to take the case through to its conclusion.

Comment from the Association of British Commuters:

“We are delighted to announce that we have now applied to Court for a judicial review of the Department for Transport’s handling of the Southern Rail management contract.

We are extremely grateful for the work undertaken by our legal team; namely barrister Jamas Hodivala of 2 Bedford Row and solicitor Matthew Garbutt and his team at Devonshires Solicitors LLP. All involved have gone above and beyond the call of duty in helping us seek justice on the Southern Rail crisis.

Our Detailed Grounds, lodged at Court today, are the result of five months’ hard work and the extensive research of dozens of volunteers who have supported the campaign by contributing their time and professional skills. Our donors, supporters and volunteers are the people who have been hit the hardest by the Southern Rail crisis, and they deserve to play a part in finally bringing the government to account.

We began this process back in September, at a time when we felt we’d already reached our last resort. That it has got so much worse, and the DfT have still not acted, now beggars belief. Commuters have long since passed the point of exhaustion, and it is a matter of shame for the DfT that we have had to go to such great lengths to demand action be taken.

We continue to urge the DfT to act decisively and transparently on the future of Southern Rail. The longer they stand back from this unprecedented rail crisis, the harder it will be to put the pieces back together again.”

Lianna Etkind, Public Transport Campaigner at Campaign for Better Transport:

“Today is a step forward for passenger power. It is absolutely right that the Government is held to account for the failings of the Southern franchise, which has made peoples’ lives a misery. Long before any industrial dispute, Southern passengers had to rely on a train service plagued by delays and disruptions, under a management contract with no financial penalties for poor performance.

Fundamentally, the running of a train service is down to the contract between Government and train operator, so the Government’s role in setting and enforcing the standards in the contract with Govia must be properly scrutinised. For far too long, passengers’ voices have been ignored in the tussle between Southern Rail and the unions. We need to ensure that in the future, passenger representation is written into this franchise, and indeed into all rail franchises, so that those who have to use the trains day in, day out, have their voices heard.”

Faryal Velmi – Director, Transport for All:  

“It is totally unacceptable that Southern Rail have been allowed to treat disabled passengers as second class citizens. Transport for All has heard time and again from disabled transport users who feel Southern Rail’s network is now a no-go zone; impacting on people’s ability to work and often leaving them increasingly isolated. The Department for Transport and rail industry must act urgently to prevent the basic rights of disabled passengers being flouted in this way.”

For a detailed explanation of our grounds, please view this document:

abc-grounds-for-judicial-review-explained

ABC continues to work intensively on the JR case, and several other campaigns for proper compensation and consumer justice. To donate to our campaign, click here.

ABC legal campaign – final preparations now being made for application to Court

ABC is a transport pressure group founded in Brighton in May 2016, in response to intolerably poor service from Southern Rail. We thought we had reached our last resort in September and launched a legal crowdfunder for a judicial review of the DfT’s handling of Southern Rail, its close subcontractor.

Little did we know then how much worse things would get.

Our lawyers spent months in correspondence with the DfT; receiving highly unsatisfactory responses and repeated, time-wasting extensions to our FOI requests. To this day, the details of the government’s contract with Southern Rail remain under lock and key; and there has never been a stronger or more urgent case for transparency than now.

With vast amounts of material to prepare, our lawyers continued to work intensively on the case and we are now on the brink of applying to Court to take the judicial review forward. The details of our final grounds will hit the press by mid-January.

Though we cannot yet share details of our final grounds, the case is sure to take on Chris Grayling’s refusal to act in the public interest, and the details of the unprecedented failure of public policy behind Southern Rail’s ‘management contract’. We are also extremely concerned about the lack of disabled access on Southern Rail, a problem that has run throughout this year of service breakdown and is set to become a lot worse with the chaotic changes to staffing now taking place.

Our campaign took on the failure and mismanagement of Southern Rail before the industrial action even became an issue. With the industrial action on top of the collapsed service we have lived through all year, one marvels at the extent of Chris Grayling’s dereliction of duty as hundreds of thousands of people suffer and the entire economy of the South has been brought to a standstill.

For more information on ABC and our #SouthernFail campaign, click here.

To donate to the campaign or purchase ABC badges, click here.

 

Legal update: the Department for Transport continues to evade its responsibility to the public

With the daily torment of travelling on the Southern Rail network worse than ever, we are also at the brink of a complete shutdown of service with the probable announcement of drivers’ strikes. The Department for Transport is clearly prepared to allow this situation to develop into a catastrophe even worse than what we have already experienced, and shows no signs of concern for the effect on the public.

Our legal update

ABC’s legal team has been pursuing FOI requests for almost 3 months now, and recently dispatched its Letter Before Action to the DfT; announcing Grounds for our application to the Court for Judicial Review. We now have news to report.

Freedom of Information requests

After multiple extensions to the deadlines for our FOI requests we have finally received an answer on most of them (one is still outstanding and now under its third extension; due 1st December). It may not surprise you to learn that these answers continue to demonstrate a complete lack of transparency and concern for the public.

Nearly all of our FOI requests have now been refused, citing extensive justifications of ‘commercial sensitivity’ and highlighting the need to conceal information on staff-related issues that “may be likely to undermine GTR’s position in negotiations with the trade unions”.

Consider this point alongside their reliance on the unproven claim of Force Majeure, which itself relies on the allegation of ‘unofficial strike action’ and now forms the DfT’s main defence for not intervening in the Southern Rail crisis. Many of us believe (in line with David Boyle’s early investigations into the subject) that it was in fact deliberate policies of understaffing that led to the collapse of the network this summer. Amid the horrific breakdown of relations between Southern staff and management, staff declined to work rest days, which was all it took to bring the overstretched network to its knees.

To this day, no evidence has been provided for ‘unofficial strike action’, even while much of the press reports it as fact. The issue now forms the government’s refusal to penalise/terminate Govia, and Transport Secretary Chris Grayling has even stated that he will not conclude this investigation until after the industrial dispute. This in other words, is the smokescreen they are relying on to justify their non-intervention in the so-called ‘franchise’ – behaving as if it is a regular private company instead of their direct subcontractor, working in a close relationship shrouded in secrecy.

Health and Safety monitoring on Southern Rail

As the industrial dispute has worsened, we have also raised our concerns about the lack of health and safety monitoring on the network, and have finally received a response to our questions. We can now confirm that the DfT has made no analysis on the effects on the public from strikes, and no risk analysis pertaining to future strikes. Any such monitoring, they say, would fall under Govia’s remedial plan (which, of course, they refuse to fully disclose). It seems they are unwilling to oversee health and safety on a network that their subcontractor manages for them, despite abundant evidence of life-threatening health and safety risks to the public.

Letter Before Action – their response to our legal grounds

We also received a response to our Letter Before Action this week, which we found highly unsatisfactory. There is a lot of material to analyse and our barristers are currently conducting an in depth review. We look forward to sharing more on this as soon as we are able.

Where do we go from here?

Firstly, do not be disheartened by this news. The DfT are facing a scandal of a generation with the Southern Rail crisis and it is not surprising that they are digging their heels in to avoid the massive embarrassment the truth will cause. We will be pushing this to a Judicial Review and fully expect the Judge to be taking note of their continued evasiveness (the failure to provide transparency is indeed one of our Grounds).

Secondly, since so much of this situation is political, we need to lobby MPs and Ministers harder than ever. The most important target right now is Force Majeure – the smokescreen the DfT use to allow Southern Rail to act with complete impunity. There is no longer any excuse for them to delay in providing a resolution on Force Majeure – the longer they delay, the more it seems that it cannot be proven.

It is also vital that we demand the government urgently steps in to the industrial dispute. Paul Maynard continues to say that he finds the union action ‘inexplicable’ and ‘cannot discern’ why they are striking: statements we consider highly disingenuous. Not only did RMT and ASLEF announce in November 2015 that they would strike on safety grounds, but the RSSB report (on the safety of DOO) itself anticipates it. With or without Peter Wilkinson’s stated intention to “smash the unions”, it is clear that the government want to ride this out and push the industrial dispute to a crisis, with the effect on the public viewed as collateral damage.

The Department for Transport must intervene

Brighton and Hove Albion Football Club and Brighton MP Caroline Lucas have also raised their voices this week, calling for the government to step in to the industrial dispute as a matter of urgency:

Click here for the full letter from Martin Perry, director of BHAFC.

martin-perry-letter

Click here for the full letter from Caroline Lucas MP.

caroline-lucas-comment

More updates soon. In the meantime, let’s stay strong, support each other and think very critically about what we read in the papers….

Latest news: DfT fail to respond to our FOI requests…again

The fact that our legal proceedings have been slow is due to the ongoing refusal of the Department for Transport to act transparently and disclose essential documents – the same refusal the Select Committee report called “completely unacceptable” and deliberately “evasive”. Today, we received yet another example of this behaviour.

For two months, the DfT has diverted our lawyers’ correspondence down the route of FOI requests, already taking a further extension of 20 days; the deadline for which was today. Astonishingly, they wrote today at 17:15 (just minutes before their second deadline) to say they will take yet another extension in order to further consult with Govia and complete ‘public interest considerations’.

At this point, it is fair to say that the DfT have done everything they can to evade their responsibility to the public; denying us our urgent right to clarity on the Southern Rail crisis. This evening, we instructed our lawyers to write back to the DfT with three separate complaint letters, expressing in the strongest possible terms our objection to this unwarranted delay.

The Department for Transport have also failed to send us a copy of their FOI policy, which they are obligated to provide. Their argument so far that they cannot reveal documents due to ‘commercial interests’ should be viewed in light of the following:

Paragraphs 74 – 75 of the Select Committee report:

  1. “Until we recently managed, after several attempts and considerable time and effort, to extract information from the Department, GTR’s contractual performance benchmarks, and data relating to GTR’s performance against them, were entirely opaque. It is completely unacceptable that changes to the contractual benchmarks were not published in an open and transparent way. It is also unacceptable that the data required to scrutinise GTR’s performance against its contractual benchmarks are not made readily available. The Department’s evasive and opaque answers to our questions hindered our inquiry and delayed publication of this Report.
  2. The DfT must take urgent action to increase the transparency of GTR’s performance against its contractual obligations. In the interests of open and transparent scrutiny, we recommend that the Department immediately require GTR to publicly report its performance against each of its contractual performance measures in each Reporting Period since the commencement of the current franchise and on an ongoing basis.”

Letter from Committee Chair to Paul Maynard, 9th September:

“I do not accept that it is necessary, or in the public interest, to keep this information confidential. While the information may be commercially embarrassing, and reflect badly on the Department, I do not see that publishing it would confer a commercial advantage on GTR’s competitors.”

The DfT have not only failed to reveal the full franchise agreement and remedial plan, but have also failed to respond to our urgent letter regarding health and safety concerns during the strikes, sent on 19th October. With all the scenes we’ve witnessed this week on Southern Rail, the dangers are getting worse, not better; and this lack of response is deeply troubling. Our lawyer, Mathew Garbutt, has written again today to urge that they engage with us on this vital matter of health and safety monitoring.

What happens next?

The deadline for a full response to our Letter Before Action is November 14th and the extended deadline for our FOI requests is the 17th – so, we will have more to report from both deadlines in mid-November. This also means that we have two weeks to lobby our MPs as hard as possible to recognise that any solution to the Southern Rail crisis hinges on achieving this transparency.

In refusing to reveal the franchise documents, remedial plan or any evidence of the claim of Force Majeure (the claim being used to justify GTR’s breach of contract); the Department for Transport are preventing any way of moving forward, and neglecting their responsibility to the public. It is exactly this refusal to act that locks us into a deadlocked and increasingly unlivable situation on our railway.