Railways Bill (Twelfth sitting)

Debate between Joe Robertson and Rebecca Smith

Committee stage
Thursday 5th February 2026 Public Bill Committees

[Rebecca Smith]

Clause 66 sets out who GBR must consult before issuing, revising or replacing the access and use policy under clause 59. The ORR and the Scottish and Welsh Ministers must be consulted as well as other persons GBR considers appropriate. Subsection (2) requires GBR to consult the persons it considers appropriate before issuing the infrastructure capacity planning document under clause 60, including any revisions and replacements; before issuing a working timetable under clause 61; and before making, altering or replacing a charging scheme under clause 64 or a performance scheme under clause 65.

Subsection (3) provides that a requirement in this clause for consultation may be satisfied by a consultation before or after the commencement of the clause. There is currently no express requirement to consult existing open access operators.

Clause 67, on appeals against access, charging and performance decisions, provides that a person who is aggrieved may appeal to the ORR against a GBR decision as to their train operations’ access to and use of the infrastructure, or a decision under the charging scheme or performance scheme. That sounds okay, until we realise that it is on judicial review terms, so there is no actual right of appeal at all.

Clause 68, on the appeals procedure, sets out that the ORR, when determining appeals under this chapter, must apply the principles that the High Court would apply on an application for a judicial review, or the principles that the Court of Session would apply in exercise of its supervisory jurisdiction for appeals in Scotland.

Subsections (2) and (3) provide for the ORR to allow an appeal or dismiss it, and, if it allows an appeal, to use the following remedies. For appeals made against the GBR policies, plans, and schemes themselves—under clause 59(6), on access and use; clause 60(6), on infra-structure capacity; clause 64(8), on charging; or clause 65(7), on the performance scheme—the ORR can only require GBR to reconsider the decision.

For appeals made against a specific decision under clause 61(5) or clause 62(7), on the working timetable, or under clause 67, on GBR’s policies, plans and schemes, the ORR can quash the decision that is appealed against. Then, however, all it can do is to send it back to GBR to reconsider, or it may substitute the decision with its own if quashing the decision is on the basis of an error of law and without the error there is only one decision that GBR could have reached.

Clause 68(1) means that because appeals must be assessed using judicial review principles, operators can challenge GBR decisions only on procedural grounds and not on the substance or commercial merits. That means that GBR will be judge and jury in its decisions affecting its direct competition, which is obviously wildly unfair.

Clause 68(3)(a) sets out that even where an appeal succeeds, the ORR can only remit the matter back to GBR for reconsideration, which means that GBR can often reach the same outcome again without revising its reasoning. That offers little to no real corrective power.

Clause 68(4)(b) says that the ORR may substitute its own decision only where there is an error of law and where only one lawful outcome was possible. That is a very high bar and as a result this remedy will be rare.

These concerns have been echoed by the industry. During one of the oral evidence sessions for the Transport Committee, Maggie Simpson of the Rail Freight Group said:

“There are a number of problems with that appeal function. First, it will be incredibly hard to ever get to it. We are told that the appeal will have to meet the standards of a judicial review—illegality, irrationality or procedural unfairness—so there will be a very high bar to meet to even get there. On top of that, the law allows the Secretary of State by regulation to set out some steps you would have to take in advance of going to the ORR. We do not know what those are. There is also a fee, and we do not know what that is. Even getting to the ORR will be very much more difficult than it is today.

If we do get up there, in most cases, the ORR will be able to ask GBR to have another look at its decision. It has another look, and it reaches the same view—so what? Only in a minority of cases can it quash a decision and only if there was an error of law…Passengers are going to get a very powerful watchdog when, conversely, we feel that in freight, we are having those rights of access watered down.”

Steve Montgomery from FirstRail said:

“Considering other large public sector organisations—like GBR is going to be—you have to ask, ‘Why would you not have an independent regulator of it?’ Why is rail going to be different from other large public sector organisations where there are regulators looking at them?”

Nick Brooks from ALLRAIL said:

“A strong independent rail regulator has two roles. The ORR, by the way, is part of the European group of independent rail regulators called IRG. Ideally, those roles are to protect passengers and other parts of the sector from monopolistic behaviour, and to ensure the best use of taxpayer money. Their role is also, in other countries, to ensure competition and non-discriminatory behaviour. We are worried that that might be watered down in this country and needs to be improved still.”

That prompts some questions that I hope the Minister can answer. Why is GBR being set up in such contradiction to its European neighbours? Is there anything that we could have learned? Will the Government reconsider any element of GBR as a result?

These concerns were also set out in the Rail Freight Group’s written evidence to the Transport Committee:

“GBR will by nature be a very powerful monopoly of track and GBR trains, and the overarching changes in the Bill reduce significantly the independent oversight of ORR, leaving the Secretary of State holding GBR to account. By comparison, the ORR currently has a duty to promote the use of the rail network and thus has a track record”—

ha, ha—

“of creating growth by approving new access applications previously rejected by Network Rail. Although we welcome the provisions for freight outlined above, there is still a significant risk that GBR could act in a way which favours its own trains, restricting growth for freight. As such, we believe it is essential that non-GBR operators have an independent appeals function that is powerful, easy to use and able to take action effectively.”

It continued:

“In essence, the provisions in the Bill mean that freight operators and customers have a very limited right of independent appeal against GBR. It is also of note that GBR may replace the current Access Disputes Committee (also independent of Network Rail) who hear lower level timetabling disputes with their own internal process, albeit we do not yet have full details of this.”

I would be interested to hear the Minister’s response to that.

FirstGroup wrote in a similar vein, saying that it was concerned

“about the ORR’s responsibility for track access decisions being transferred to GBR…The Bill removes the ORR’s powers to independently adjudicate on whether applications for access best meet the needs of all railway users. Under Clause 68 the ORR is an appeals body but with no ability to uphold appeals if they are discriminatory or anticompetitive. There need to be more checks and balances to maintain confidence in fair access, independent regulatory oversight and to protect the interests of passengers…As a broader point, independent regulation is vital to all large comparable bodies—consider for example the CQC’s role in healthcare or the Civil Aviation Authority in airlines and airports.”

The pushback against this grossly unfair clause is overwhelming, and the Government can surely no longer turn a deaf ear.

Amendment 88 would remove the requirement that appeals may be made only under judicial review principles. We think that it is an obvious improvement. At the Transport Committee on 7 January, the Department for Transport’s official, Lucy Ryan, stated that the requirement is deliberate:

“The reasoning for the JR threshold is to be absolutely clear that GBR needs to remain the directing mind, able to take decisions about optimising the use of the network.”

That is an insufficient safeguard against monopolistic behaviour by GBR. Large monopolies with structural conflicts of interest need effective decision-making oversight. It cannot be done by the Secretary of State, because this is operational, so it has to be the ORR.

Amendment 89 would enable the ORR to determine appeals on the facts and the law. It builds on amendment 88, and we think it is the only way to create a fair and non-discriminatory process. Amendment 90 would allow the ORR, when agreeing an appeal, either to remit to GBR for reconsideration or to quash and/or substitute its own decision for all or part of the decision appealed against. An independent appellate body applying the rules to GBR and its decisions would not challenge the role of GBR, but make sure that it was applying its rules fairly and correctly.

Amendment 91, which I believe the hon. Member for Didcot and Wantage supports, would allow the ORR to substitute its own decision for that of GBR when allowing appeals, without there needing to have been an error of law, resulting in only one possible outcome. It would remove a ridiculously closely drafted requirement, and it is obviously fair. It is a test to see if the Government actually want a fair and level playing field.

Amendment 92 would require the Secretary of State to consult open access operators before making regulations about steps that must be taken before an appeal can be brought, to make provision about the procedure and to set time limits and fees for the appeals brought under this chapter. Operators clearly have skin in the game, and should be consulted by right.

Amendment 93 would require the ORR to consult open access operators before publishing its document on the practice and procedure for appeals under this chapter. The argument for that is very similar to the one behind amendment 92, which I just set out. Will the Minister stand up for the open access and freight sector, and support our amendments to create a fair appeals process?

[Joe Robertson (Isle of Wight East) (Con)]

It is a pleasure to serve under your chairship, Mrs Hobhouse. I have a short point to make. The Minister seems to be saying that it is important to restrict an appeals process to the judicial review principles, which is a more restrictive set of criteria by which a body or company can appeal. Otherwise, that might lead to “incoherent decision making”—I think those were his words.

That sentiment and assertion undermines the entire court system of the United Kingdom—save for judicial review applications—which is based on disputes being had in, for example, the county court or the High Court, or another court making a decision, and the possibility of an appeal going upwards all the way to the Supreme Court, depending on the issue. However, nobody would suggest that that leads to an incoherent society or to incoherent contracts, family law, employment law, decision making or anything else.

For some reason, Great British Railways has this special carve-out, such that it can be challenged only through judicial review, because of some notion of incoherence. It seems to me that the entire purpose of that restriction is to prop up Great British Railways and allow it to act in a way that is not really comparable to anything else in the way we deliver public transport in this country. It gives me considerable concern.

--- Later in debate ---

[Joe Robertson]

Channel your inner Jerome!

[Rebecca Smith]

I think he probably would have said it, to be perfectly honest.

Clause 73 marks the end of a very significant chapter in the Bill, with many poorly drafted or simply ill thought through clauses. I am sure the drafting has been done with the greatest attention to detail; it is just the “thought-through-ness” that we are struggling with. But we end on a positive note, with no objections to clause 73.

Railways Bill (Eleventh sitting)

Debate between Joe Robertson and Rebecca Smith

Committee stage
Thursday 5th February 2026 Public Bill Committees

[Joe Robertson (Isle of Wight East) (Con)]

This question is possibly better directed at the Minister, but does my hon. Friend think that the clause might be so restrictive because, in truth, the Government do not really want open access, despite what they say?

[Rebecca Smith]

I agree with my hon. Friend. I alluded to that issue earlier in my comments, and my hon. Friend the Member for Broadland and Fakenham raised it on Tuesday. That is why we are concerned on behalf of not only open access, but first of all passengers, who are not going to get the best possible service because of the inbuilt assertion that open access can ultimately be discarded if the Government do not see it as palatable.

The written evidence from Lumo and Hull Trains also says:

“As the Government and GBR seek to deliver a thriving, growing railway, it is vital that the Railways Bill recognises and protects the contribution that Open Access makes to these shared goals. This will ensure that it will continue to deliver these benefits to the millions of passengers who rely on them, now and into the future…As the Government looks to modernise and centralise rail through GBR, it will be important that competition remains an embedded principle within this framework. Open Access provides a proven model of innovation and efficiency, which can help GBR achieve its statutory objectives. Recognising the role of competition as a driver of value and growth will ensure that passengers, the network, and the public purse all continue to benefit.”

FirstGroup’s written submission to the Transport Committee tells a similar story, saying that open access operators

“receive no government funding, take on full risk, and generate their own revenue— giving them very strong incentives to deliver a service which is endorsed by passengers…The way in which GBR structures its timetable will be critical. It should be obliged to carry out its functions fairly and without discrimination, so that if an open access train service can provide passenger benefit monopoly interests do not prevent that train from running.”

FirstGroup also says:

“Clause 63 must ensure that un-funded services which GBR ‘expects’ are not given train paths in advance of funded open access services, which will provide passenger benefit sooner.”

The Rail Freight Group is also concerned by the clause, telling the Transport Committee:

“We understand that the basis of the new approach will be via Infrastructure Capacity Plans (Clause 61) and, for GBR’s own trains, via the Capacity Duty (Clause 63). It is very difficult from these clauses to have a clear understanding of how the new process will operate, and how rail freight and rail freight growth will be facilitated, including in contractual rights for operators…For example, we understand from our discussions that there could be numerous infrastructure capacity plans across the network which a new freight service will have to navigate. We also understand that when an infrastructure capacity plan is reviewed, existing freight services could be stopped from operating if other services are considered to be higher value, as contractual commitments are expected to expire in line with the capacity plans.”

Nick Brooks from ALLRAIL told the Transport Committee:

“I think we would look for clarification, regarding clause 63, that GBR cannot reserve capacity for hypothetical future GBR long-distance services at the expense of privately funded open-access proposals or existing services that provide immediate benefits—and extra infrastructure income, of course, because open-access operators are paying track access fees too. For that, I think you need to prioritise funded open access over speculative GBR services ‘someday in the future.’”

It is very clear what the sector thinks: clause 63 needs substantial clarification. That is why, along with the Lib Dems, we have tabled a number of amendments, which I will briefly speak to. Amendment 81 would make it clear that capacity allocation should be based on a level playing field, without priority given to any particular operator. That would allow the best outcome for the passenger, and allows the public interest bit in clause 18 to take the lead. Proceeding on any other basis will leave us with a monopoly that is allowed to abuse its position.

Amendment 80 puts forward an alternative approach, based on key performance indicators, but it is clear the Government are not interested, so in the interests of time I will not pursue that further today—that will be one fewer Division, the Government will be pleased to hear.

Amendment 253, in the name of the hon. Member for Didcot and Wantage, requires GBR “to retain sufficient capacity” to ensure that the rail freight target is met. To progress, there would need to be a mechanism to reach a decision if that conflicted with any planned GBR service.

Amendment 211 would require GBR

“to publish a statement explaining any decision not to grant access to a specific part of the network on the basis of network capacity.”

For an appeals process to have any meaning at all, that would need to be a pre-requisite.

Amendment 229 would ensure that

“capacity allocation decisions reflect both planning priorities and freight-increase ambitions”

and would require

“GBR to publish and maintain a list of strategic freight corridors and ensures that any material reduction in capacity must be approved by the ORR.”

The amendment would give a better balance to capacity considerations than the current wholly one-sided drafting. That is incredibly important because, ultimately, the Government are seeking to reduce climate change and achieve net zero. Freight plays a huge part in that, and if we do not have strategic freight corridors to ensure that we can make use of the freight system, we will fall short of what could be achieved.

Finally, new clause 56, in the name of the Libs Dems,

“requires GBR to explore and consider the potential benefits of centralised train planning and auctioning.”

That is an interesting concept and could have significant benefits for passengers and taxpayers by driving competitive pricing for certain routes, while avoiding the abstraction arguments in relation to competing open access applications.

Oral Answers to Questions

Debate between Joe Robertson and Rebecca Smith

Thursday 10th July 2025 Commons Chamber

[Joe Robertson (Isle of Wight East) (Con)]

14. What progress he has made on publishing a tracking dashboard for the plan for change metrics.

[Rebecca Smith (South West Devon) (Con)]

17. What progress he has made on publishing a tracking dashboard for the plan for change metrics.

Swimming Facilities

Debate between Joe Robertson and Rebecca Smith

Wednesday 4th June 2025 Westminster Hall

[Joe Robertson]

The statistic provided by my right hon. Friend could get worse if the number of public swimming facilities declines any further, because of that lack of swimming skills. It seems fairly obvious that, if someone is in trouble in the water, their best chance of surviving is if there is somebody nearby who can swim.

Two of the biggest costs for swimming facilities are energy and staffing, and the cost of both has increased in recent years, putting huge pressure on pools. Post-pandemic, energy is twice as expensive as it was four years ago, and according to Swim England, national insurance contribution increases in the last Budget are costing operators across the country tens of millions of pounds.

Since the pandemic, 206 pools have closed either temporarily or permanently, but local authorities are generally squeezed for funding and there is no prospect of that significantly changing in the next few years as far as I can tell. They are not in a position to substantially divert funding from core services, such as social care, to swimming facilities. Operators have already had to dip into reserves, and Community Leisure UK reports that its members across England are currently in deficit.

[Rebecca Smith (South West Devon) (Con)]

I congratulate my hon. Friend on securing the debate. He is spelling out the challenges that local councils face. Does he agree that we have a particularly big challenge coming down the road—albeit one that is already in front of us—in new towns? In Sherford in my constituency, a swimming pool and a leisure facility were part of the plans. People have bought into living in those new towns based on that promise, but given the lack of funding and the increased costs of running leisure facilities, there is a battle over who will deliver them. This means the facilities are kicked into the long grass, and residents like my constituents are left waiting and hoping for the facility to come. Does my hon. Friend agree that the Government need to ensure that, as they pursue their housing plans, they are minded to fund leisure facilities so that new towns have them as required?

[Joe Robertson]

It is very disappointing to hear about the situation in my hon. Friend’s constituency. Yes, I do think there is a role for the Government, and I will come to that in more detail. I hope she agrees with what I am suggesting.

There is also a significant problem with ageing swimming pools. Generally, they have a life expectancy of around 40 years—the average age of a pool closing due to age is 38 years—but 30% of pools in England are more than 40 years old. This means they are close to the end of their lifespan, and there is no identifiable source of funds to deal with that issue. There is considerable and growing demand for capital investment because our pools are ageing. Swim England says that, by 2030, 73% of local authorities could have a shortage of at least one swimming pool.

On the importance of swimming pools for children, currently only 72% of children leave primary school able to swim 25 metres, but the figure is just 45% in the country’s most deprived areas. If our ageing pools are not upgraded or replaced, it seems obvious that those figures will only get worse.

Winter Fuel Payment

Debate between Joe Robertson and Rebecca Smith

Tuesday 10th September 2024 Commons Chamber

[Joe Robertson (Isle of Wight East) (Con)]

My hon. Friend makes a good point about those with health conditions. Does she agree that there is no provision in the proposal for those living with dementia or long-term frailty? Those are not means-tested diseases or conditions, yet the Government have not made any provision or assessment of how those living with dementia will miss out.

[Rebecca Smith]

I agree. My hon. Friend makes an incredibly important point about those vulnerable older people who live with dementia; many of our constituents will be in that situation.

Why are we not looking at alternative ways to deal with this cliff edge? A couple of years ago, the Conservative party proposed the council tax rebate scheme, which used the council tax system as a mechanism to ensure the most vulnerable received support. Single-person households, those where someone had dementia, or households in receipt of council tax credit because they did not have a particularly high income received a discount through the council tax rebate scheme. That system could be replicated with the winter fuel payment, which would offer an alternative way of avoiding that cliff edge for so many residents.

Finally, I know that health has already been mentioned, but I wish to use this as an opportunity to highlight the fact that so many more elderly people will need hospital care this winter, but that is massively impacted and at risk because the Government will not confirm which of the new hospital programmes are going forward. In particular, the emergency and urgent care centre in Plymouth will be vital to providing the healthcare that our older people will need if they are unable to heat their homes or to look after themselves, and to ensuring that they have all the support they need.