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.

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Click here for the full letter from Caroline Lucas MP.

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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.

Our message to MPs – how you can help…

Today, we announced our legal grounds for judicial review, which we anticipate will prove beyond doubt the unlawful conduct of the Department for Transport in its failure to monitor and enforce the Southern Rail franchise agreement.

The failure of the DfT to lawfully monitor the Southern Rail franchise has resulted in the collapse of the network, and an ongoing, catastrophic effect on the lives of commuters across the South. It is absolutely staggering that the Secretary of State can allow this situation to continue and this can only mean one of two things: either he is aware of the problems commuters are facing and chooses to do nothing; or, he is not aware and has failed to adequately inform himself of the devastating impact on commuters’ lives. Either way, we believe this behaviour is unlawful and an outright betrayal of the public’s right to transparency, safety and equality of access.

We continue to hear stories on a daily basis from commuters who have lost their jobs or been forced to move out of the area, so extreme are the conditions for rail users. More worrying still are the terrible health and safety risks on the network, of which we have written to the DfT and received no response. The situation could not be more urgent – our rail infrastructure is at the point of collapse and we dread to think how long it will take to put it back together again. The Secretary of State must act now, with full transparency and acknowledging the urgency of the catastrophe that he has allowed to develop.

Most serious of all is the effect the Southern Rail crisis is having on the lives of disabled commuters. The Secretary of State is obliged to comply with the 2010 Equality Act and ensure adequate rail travel for disabled passengers, and he is breaking this obligation. It is totally unacceptable, immoral and unlawful that disabled passengers should have to book their travel as long as 48 hours ahead and, even then, be unsure of assistance.

The Select Committee for Transport is very clear on the point that the DfT has not conducted an adequate impact assessment of the effects on DOO on the disabled. We cannot accept a future where this becomes the norm, with unstaffed DOO trains arriving at unstaffed rural stations and effectively ending reasonable rail travel for these passengers across the South.

We call on the DfT to provide full and complete disclosure of the franchise agreement and remedial plan; and to cease its apparent policy of providing incomplete information to both the ABC and the Transport Select Committee. It is vital that the needs of commuters, especially the elderly and disabled, are put first by the Department for Transport; and that they stop ignoring the impact of the crisis we are living through.

How you can help:

We have announced our legal grounds to all MPs across the South and ask for their urgent help in advocating for transparency from the DfT. Please help us by writing to your MP and asking that they join us in demanding the full and urgent disclosure of Govia’s franchise documents and remedial plan.

 

ABC announce legal grounds for judicial review of the Department for Transport

After two months of hard work, we can finally announce the grounds on which we intend to apply for permission to bring a judicial review of the DfT over their handling of the Southern Rail crisis.

We have now dispatched a Letter Before Action to the Secretary of State for Transport, and are finally able to share the grounds on which we intend to apply for permission to bring a judicial review of the DfT.

The grounds on which we shall seek permission from the Court include:

  1. The unlawful lack of transparency surrounding the Secretary of State’s monitoring and enforcement of Govia’s franchise agreement and remedial plan.
  2. The unlawful failure of the Secretary of State to adequately inform himself of the facts in order to comply with his duty to monitor and enforce the franchise agreement.
  3. The unlawful failure of the Secretary of State to comply with his own Equality Act 2010 duties by failing to monitor and enforce the obligation to provide an adequate train service for disabled passengers.
  4. Assuming that Govia is in breach of its agreement (a fact which is obscured by the DfT’s ongoing lack of transparency) the failure to penalise Govia for its failure to meet performance benchmarks, amounting to unlawful state aid.

Our lawyers have requested a response by 11th November. If the DfT do not address these concerns by way of a full response, we will issue an application for permission to bring a judicial review. If that application is successful, we will be launching a second crowdfunder to take us all the way through the Court proceedings.

Many thanks to all our supporters for your contributions, and your patience. The process was slowed considerably by the lack of transparency from the DfT; but with the recent Select Committee report strongly backing up our arguments, we can now move quickly towards demanding this transparency in Court if necessary.

Background to the case:

The Association of British Commuters’ legal campaign began on 5th September 2016 and our lawyers have been corresponding with the Department for Transport since this time, requesting the release of documents and information that would confirm whether Govia are in breach of the terms of the franchise agreement and remedial plan.

The DfT have refused to release many of these documents, demonstrating the same lack of transparency that the Select Committee for Transport called “completely unacceptable” and deliberately “evasive” in their report of 14th Some of our requests are still being considered.

The Transport Select Committee’s damning report backs up the arguments that ABC has been making for months, and has strengthened our case on all of the above points. (“6th Report – The future of rail: Improving the rail passenger experience”, published on 14th October.)

The legal grounds on which we go forward are the work of Matthew Garbutt, our instructed solicitor at Devonshires LLP; and two of the UK’s leading barristers; Jamas Hodivala and Rhodri Thompson QC.

Please sign up to our newsletter to stay in touch or register your interest in volunteering with the campaign.

Fears for Health & Safety on Southern Rail – our lawyers write to the DfT

We have been inundated with reports of health and safety risks related to overcrowding on the Southern Rail network; problems that we have witnessed for many months, and have reached their peak during the strike action.

Our lawyers have now written to the DfT seeking clarity on whether they have conducted any risk analysis in advance of the RMT strikes, and at what point the DfT will consider these risks to be seen to be sufficiently serious to warrant termination of the franchise. We seek to know what instructions (if any) the DfT have given GTR in minimising the effect on rail users during this time, and whether GTR’s implementation of these instructions is being properly monitored.

The witness reports of which we have informed the DfT include: incidents of violence at Brighton station, dangerous overcrowding and mass panic in crowds, mass rushes along overcrowded platforms to board trains in the case of last-minute announcements, a child left abandoned on a platform due to overcrowding, and illness and incapacity brought on in the vulnerable, pregnant, elderly and disabled.

Statement from the Association of British Commuters

“The Select Committee for Transport confirmed last week what ABC has been arguing for months – that the Department for Transport have failed to monitor and enforce the GTR franchise agreement, and are evading their responsibility to provide proper transparency.

In the meantime, with no confidence in GTR’s management of the network, or the DfT’s oversight; we feel that the extra overcrowding during the strikes represents an unacceptable health and safety risk to the public and fear that it is not a matter of ‘if’ but ‘when’ we will see a tragedy on the network.”

The Transport Select Committee’s report – released 14th October.

We highly recommend reading the full report, which backs up the arguments that the Association of British Commuters have been making for months. In regard to the Department for Transport’s responsibility to step in to resolve the ongoing failure of GTR and the industrial dispute with the RMT, please note the following; and be reminded that the GTR contract is not a typical franchise agreement, but a management contract.

Extract from paragraph 52:

Whilst the dispute can ultimately only be resolved through negotiation between GTR and the RMT, given the Department’s unusually direct involvement in the TSGN franchise it should take a greater degree of responsibility for fostering productive negotiations. We therefore urge the new Rail Minister and Secretary of State to engage more actively and substantively with the rail unions’ safety and workforce-related concerns in relation to the expansion of DOO on the TSGN franchise, as a matter of urgency.

Extract from paragraph 56:

We are concerned that no official impact assessment has been made of the potential effects of DOO on disabled people’s access to the railway. We recommend the DfT and the Association of Train Operating Companies (ATOC) jointly commission research into the potential effects of DOO on the “turn up and go” accessibility of the railway to disabled people who require assistance getting on and off trains. The Department should draw on this research to issue guidance to train operating companies on the measures that should be taken to mitigate potential detrimental effects on disabled people’s access. It should ensure that actions are taken to guarantee that disabled rail passengers receive the support to which they are entitled.

Extract from paragraph 82:

If GTR is in default, it is incumbent on the Department to take the franchise back in house and then to find one or more operators that can improve the situation. It is simply not credible for the DfT to continue to claim that “no other operator” could improve the situation; if it is the case, it is a consequence of the structuring of the franchise, for which the Department is ultimately accountable.

For the full report, click here.

Transport Select Committee report confirms “unacceptable” lack of transparency from the DfT

In their report today, the Select Comittee for Transport confirms what ABC has been arguing for months: that rail passengers have been badly let down by the Government’s failure to structure, monitor and enforce rail franchise agreements.

The report is dominated by the problems faced by Govia Thameslink Railway passengers for more than a year, including poor management of the franchise from the start; inadequate staffing; rolling stock issues; mismanagement and prolonged industrial action, complicated by the huge Thameslink infrastructure programme.

In examining whether GTR is now in default of its contractual obligations, the Committee makes clear that, under normal circumstances, there would already be grounds for the termination of its contract. The complication to this is GTR’s claim of force majeure (forces beyond its control); a claim based in part on the alleged ‘unofficial strike action’ relating to staff sickness levels.

Regarding the issue of force majeur, the report states that crucial processes have been delayed by the “tardiness” of GTR in suppling the necessary information to make its claim. It also finds it “unacceptable” that the DfT does not intend to conclude its assessment of GTR’s force majeur claims until the current industrial dispute is resolved, stating: “it is essential that the Department provide clarity about whether GTR is in default, as a matter of urgency”.

The Comittee expresses “complete dissatisfaction” with the DfT’s answers to its questions, going so far as to say that “the Department’s evasive and opaque answers to our questions hindered our inquiry and delayed publication of this Report.”

On this issue, it is worth highlighting points 72 and 73 in full:

72. The DfT has a duty to hold train operating companies to account for poor performance; passengers expect and deserve this. The answers provided to us by very senior officials in oral evidence, and the Department’s subsequent written submissions, however, give us little confidence that it has a firm grip on the monitoring of GTR’s contractual obligations.

73. 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.

The report also emphasises the lack of information about the £20 million ‘improvement fund’ announced on 1st September 2016:

81.We ask that the Department, in response to this Report, set out in detail: how the recently announced £20 million will be allocated to address the problems on Southern Railway; whether the £20 million is new, additional funding, or from what part of the Department’s budget it has been reallocated; the precise outputs it expects the £20 million to achieve; and a more precise timetable for the publication of the project board’s plan and the implementation of its actions. This money should ultimately be recovered from the operator.

**ABC’s legal team have been informed that the £20 million ‘improvement fund’ is not in fact ‘new money’, but has been taken from Network Rail’s existing budget for Control Period 5. This is a budget that has already considerably overspent.

Further to the matter of terminating the contract, the report makes clear that it is “simply not credible for the DfT to continue to claim that “no other operator” could improve the situation” and, notably, that “if [this] is the case, it is a consequence of the structuring of the franchise, for which the Department is ultimately accountable.”

For the full report, click here.

Department for Transport provide their first document – Breach Notice, July 2015

Legal update from our campaign for a judicial review into the Department for Transport’s handling of the Southern Rail crisis

On Tuesday 4th October, the Department for Transport wrote to our lawyers and revealed the first in our list of requested documents: the breach notice under s.55 of the Railways Act, issued by the Secretary of State on 7 July 2015, and under which the remedial plan was prepared.

They have declined to provide other essential documents regarding the franchise and remedial plan citing ‘commercial interest’, and have insisted on a further 20 working days to consider our request. We expect their final response on November 4th.

With so much of the story still hidden from the public, we need to start asking some vital questions: Did Govia give a satisfactory remedial plan at the time of their 6th September 2015 deadline? The public has access only to the the heavily redacted remedial plan of 12th February 2016 – so, what happened in all the gaps inbetween?

The above questions are what our lawyer Matthew Garbutt and barristers Rhodri Thompson QC and Jamas Hodivala will be asking as they continue to communicate with the DfT, insisting that the full disclosure of all documents is in the public interest.

For the full copy of the breach notice served on Govia on 7th July 2015, see the PDF below.

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