Rebecca Smith
MP for South West Devon · Conservative · United Kingdom
“The Secretary of State claims that decisions reflect local identities. Well, I can advise him that the majority of my constituents and those living in rural Devon would highly disagree.”
“I thank the Minister for his answer. He and I have had several interactions over the marine autonomy sector in particular, and I welcome the regulating for growth Bill, as I have said before in this place. However, I am incredibly keen to be reassured that it is coming early in the autumn.”
“The right hon. Member has highlighted that, in his view, this is not a binary choice between a debate on the middle east and holding the new Prime Minister to account. I wonder whether I might therefore offer him a solution.”
“I want to hear his views on defence, welfare, taxation and special educational needs. Those are the things that I believe the House deserves to hear directly from the new Prime Minister before we return in September. Might the right hon. Member consider that pretty simple solution, which would give everyone what they want?”
“The Minister makes a very interesting point about city centres being hollowed out, but the main thrust of this debate is about young people doing summer jobs before they go back to school or university in the autumn.”
“My hon. Friend reminds me that one of the other soft skills that we learn that way is resilience. I am wondering how he got those jobs, because I earned £10 a day in my first job. I was sweeping the floor in a florist and, if I was lucky, bundling up some flowers before I sold them.”
The complete record
Every one of 601 lines we hold for Rebecca Smith, in date order, each linked to its source. Free to read, in full, without an account. Page 5 of 13.
“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.”
“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.”
“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.”
“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.”
“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.”
“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).”
“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.”
“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.”
“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.”
“I have listened to the Minister’s comments. As I said earlier, we will not press amendment 80 to a vote, but I wish to press the others to a vote. Question put, That the amendment be made.”
“The duty to consult and appeals provisions in clauses 66 to 68 also apply to the working timetable, but not to alterations of the working timetable.”
“Clause 61(1) sets out that GBR must issue one or more timetables covering all train movements on GBR infrastructure for the period that GBR intends the timetable to cover, to be known as a working timetable. Subsection (3) allows GBR to alter a working timetable, for example to add new train movements, change a planned train movement, allow for maintenance works, deal with disruption, or change the duration of the timetable. Subsection (4) allows GBR to alter a planned train movement of an operator other than GBR only with that operator’s permission. Subsection (5) provides a right of appeal to the ORR for an operator who applied for a train movement to be included in the working timetable by GBR but was refused, or where the inclusion was made subject to conditions.”
“Amendment is 211 is mine, and we would like to press it to a vote. [ Interruption. ] Oh, no, that is also a Liberal Democrat amendment—that says “Opp” as well.”
“I beg to move amendment 242, in clause 64, page 36, line 6, leave out subsection (1)(b). This amendment would remove the requirement for GBR to charge in relation to trains which are planned to use GBR infrastructure but do not operate, or do not operate in full.”
“Subsection (6) allows for a change at any time, and without notice. It is clearly impossible to run a service without confidence of track-access charges. A devolved, concession, freight, open access or heritage and tour operator could, at the stroke of GBR’s pen, suddenly find its cost base increase significantly. That is not conducive to long-term business planning, and must harm private sector investment in rail services.”
“The clause allows GBR to set charges above direct cost based on what it considers an efficient operator could afford, which remains a subjective judgment made by a body that is itself a major operator. Even with the ORR able to substitute its own decision on appeal, the initial charging decision sits entirely with GBR. That creates scope for charges that disadvantage open access operators, unless and until challenged, which is not the level of neutrality expected for an industry-wide charging regime. Subsection (4)(a) is an oxymoron. Charges could not be assessed unless there were sufficient capacity to run a service, which by definition would mean that there is assessed to be spare capacity. Subsection (5) does not provide open access operators sufficient information to properly assess the fairness of the proposed charges.”
“GBR will not charge itself for use of infrastructure, despite being an operator as well as the infrastructure manager, but must include in its charging scheme sufficient information on the charges for its passenger services’ access to and use of its infrastructure to explain how charges in the scheme have been calculated. GBR will be able to make changes to its charging framework at any time. The Opposition believe that the clause is simply terrible. It confirms the worst fears of other rail users, and gives no certainty for business planning. Subsection (3) allows for a higher amount than the actual cost to GBR to be charged in particular circumstances, but those are not defined or explained. If GBR thinks that the operator has the money to pay it, then it is expected to pay—no rationale for the increase is given.”
“The base assumption is that charges will be set at the costs directly incurred—for example, the wear and tear caused by the service—but subsection (3) provides for a higher charge to be demanded in particular circumstances, “provided that it does not exceed the amount that Great British Railways considers is the amount that an efficient operator would be able to pay in those circumstances.” Subsection (4) confirms that GBR can also set a lower charge where it considers that appropriate, for various purposes, including but not limited to encouraging the use of spare capacity and promoting new services. The Subsidy Control Act 2022 would apply to any decision to lower charges under that provision.”
“Clause 64(1) requires GBR to develop a charging scheme setting out the charges to be paid for access to and use of GBR’s infrastructure, and the extent to which charges may by payable in relation to trains that do not operate, or do not operate in full, despite their use being planned in.”
“Amendment 230 would ensure that services are not caught within the charging scheme if they cannot operate due to GBR failures or actions—a case of natural justice. Does the Minister accept that the existing wording of the clause would allow GBR to profit from a cancellation of services caused by GBR’s failure to provide infra-structure? If so, will he explain how that could be a fair result? Amendment 242 would remove the requirement for GBR to charge in relation to trains that are planned to use GBR infrastructure, but do not operate or do not operate in full. Again, that is in effect a probing amendment, or a making-a-point amendment, as it were. With that, I shall sit down.”
“Once again, that would put accountability and transparency back into the system—something the Government seem hellbent on ignoring. The second impact would be to allow affected organisations time to prepare an appeal. Judicial review requires a very short application process of just 12 weeks. This amended clause would help aggrieved parties to prepare a complex challenge in time for a JR timetable. Amendment 84 is more a probing one, so it will be interesting to hear the Minister’s response. The reflection on the judicial review process is particularly important, because we do not want to crowd people out of the opportunity to appeal. Anything he can offer in response would be appreciated.”
“Instead, it would impose a duty on GBR to give other operators a minimum of 12 months’ notice of changes to the charging scheme, so at least they can react to the change and seek any appeal before the event rather than after it. Speaking to amendments 82 and 83, the Rail Forum has said: “We strongly support these amendment, access and other charges should be reasonable and operators should have sufficient warning of changes to be able to plan accordingly.” The amendments are not just a nice idea being suggested from the Opposition Benches, but something that the industry would like to see as well. Amendment 84 would provide that neither the Secretary of State nor Great British Railways can take any step to implement any part of the charging scheme until it has been laid before Parliament for three months.”
“This will sustain confidence in a fair and transparent access regime and ensure that private investment continues to play a central role in delivering a successful railway.” Amendment 83 would prevent GBR from charging any sum it liked without notice. Instead, it would be required to follow the standard pricing structure set out in clause 64(2), based on actual costs incurred as a result of the activity. Does the Minister agree that any serious business case for private investment in our railways will need to have the certainty of fixed costs? How does the clause achieve anything other than the opposite? Amendment 82 would remove the right of GBR to charge its competitors costs, basically at any time and without notice, on grounds that they have access to more money that they could pay.”
“Confidence in a fair charging regime is essential for the continued profitability of private operators. Reinforcing a transparent and proportionate charging system will also help deliver the Government’s wider fiscal priorities by attracting and retaining private investment. By giving investors certainty that network costs are predictable and fairly allocated, the Bill can ensure that private operators continue to play a central role in funding innovation and expanding passenger capacity across the UK.” Lumo and Hull Trains recommend: “The updated charging regime must be developed in consultation with private stakeholders, appropriate for the markets being served and regulated with independent oversight from the ORR.”
“Independent regulation of charging is therefore vital to maintain investor confidence and ensure fairness between different operators. Open Access operators already make a substantial contribution to the upkeep of the network while receiving no public subsidy. The charges paid by Open Access are calculated independently by ORR to encourage investment, sweat the railway asset and deliver connectivity and the associated economic benefits. It also acts as an additional income stream to Network Rail. These arrangements demonstrate the sector’s willingness to invest and its commitment to supporting the network’s long-term health. Ensuring that access charges remain proportionate and independently regulated will help reinforce the Government’s objective of crowding in private capital to support network growth.”
“Is GBR an independent entity, or not? I think the Bill says it should be GBR itself that determines that, if I am not mistaken. It is a little bit like another conflict, or potential problem, with track access fees. Who decides the size of the track access fees? If you are a privately owned operator, is it your competitor—GBR—that decides your track access fees? That is a potential cause of worry.” Lumo and Hull Trains also had similar concerns, which they raised in their written evidence to the Transport Committee: “A transparent and proportionate charging regime will be critical to ensuring the financial sustainability and competitiveness of the railway. If GBR were able to set and revise access charges without independent oversight (as suggested by clause 64), it could create uncertainty and deter private investment.”
“Indeed, there is a scheme coming in— I mentioned it on Tuesday, but now I cannot remember its name—that will look at different types of transport, and one of the plans is to ensure modal shift. Anything that undermines that is potentially contradictory and a backwards step. The Transport Committee also heard evidence from Nick Brooks of ALLRAIL, who said: “I was just going to say something about privately owned investors and privately owned operators, specifically privately owned investors that want to invest in our sector rather than in other sectors—aviation, the road sector, or even completely different sectors. There is a certain risk. There is a commercial risk, of course, and ultimately they are looking for lower fixed costs and higher variable costs. The worry with GBR is this: who determines what the market can bear?”
“Through a general clause 64(3) which allows GBR discretion to charge more if ‘an efficient operator can pay it’. This is a very broad test and far wider than the test in current law ‘if the market can bear it’. This raises the prospect of far higher, and potentially uncapped charges being levied. Increasing the costs of rail freight will simply make using rail too expensive for customers when compared to road freight, and will reverse modal shift and undermine growth. It is essential that the powers to charge more than the standard charge are strictly limited for GBR.” The key point there is about reversing modal shift. On the one hand, the Government want to promote modal shift.”
“Any of us who has worked with anyone who ever wanted to get a judicial review knows that it is incredibly difficult. It is also incredibly expensive, so it is certainly not a level playing field. The industry has rightly been outspoken on clause 64. In evidence to the Transport Committee, the Rail Freight Group stated: “The Bill sets out the future framework for access charges for freight. In headline terms the charges will be calculated in a similar way to today (costs directly incurred by running the train) which we welcome. However, the Bill provides for extra costs to be levied on freight services a. Through a mandatory reservation charge for capacity which is booked and then not used (for example, if a customer cancels a train due to poor weather) (Clause 64) b.”
“I can appreciate where the hon. Member is coming from. It sounds like a good idea; however, it could still be in the legislation directly, and the illustration he gave still leaves a huge number of questions about what happens if there is more than one user of that bit of infrastructure. Why should the private operator be the one that has to pay for the infrastructure? If anything, there is an issue, which I may come to, about the impact on fares, because ultimately, by the sound of it, GBR is going to have far fewer costs than other operators. In principle, I can see why the hon. Member made that point, but I think it is not clear enough at this stage. Clause 64(8) allows a right of appeal, but only under judicial review-type provisions, which is no right at all.”
“The point I think we are making with our amendments is more about where issues that it is within Great British Railways’ responsibility to fix mean that services cannot run, and about not believing that the operators, which have no responsibility for the infrastructure, should still be expected to pay a fee if they are not able to run their services. I think we would have been alluding to that, rather than where they are running empty trains. There may well be empty trains as well, but I think we were talking specifically about where GBR had the responsibility—”
“It is a pleasure to serve under your chairmanship, Mrs Hobhouse. There is not much to say, except that the hon. Member for Didcot and Wantage raised a question about our amendments and what he called phantom paths. I think he may have been referring to ghost trains, as opposed to phantom trains—if you google “phantom trains”, all sorts of weird films come up, and they are far too scary for me to watch. He is not here to disagree with me, but I think he was alluding to the issue of trains running entirely empty through stations where people would have quite liked to get on them.”
“Amendment proposed : 230, in clause 64, page 36, line 7, at end insert “, except where the services cannot operate due to a failure of the GBR infrastructure or the need for GBR to take capacity for work on the network.”— (Rebecca Smith.) This amendment would ensure that services are not caught within the charging scheme if they cannot operate due to GBR failures or actions. Question put, That the amendment be made.”
“I thank the Minister for that. Yes, absolutely; I believe our amendments are much more about the infrastructure that GBR has responsibility for and about operators not having to pay if they are un able to operate their services. A natural disaster is probably a bit too extreme, but if, for example, a train is running through to Dawlish and the line gets closed, I think it is fair to suggest that the operator should not have to pay the fees for that train. We will press some of these amendments to a vote for that reason, but I just wanted to clarify that point. Without further ado, I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.”
“Amendment 254 is good in so far as it goes in relation to rail freight, but other rail operators also provide public benefit and should receive a similar level of protection. The Opposition are happy to support the amendment, but we do not think it goes nearly far enough. Amendment 255 would give the ORR the power to order GBR to revise a charging scheme if it found, on appeal, that GBR had not dealt fairly with the appellant. With the current constraint on appeals, the amendment would make no practical difference. The Government need to go much further by providing a genuine appeals process to assess appeals on their merits, with an independent body, not a direct competitor, taking the key charging decisions.”
“I beg to move amendment 85, in clause 65, page 37, line 15, leave out subsection (3)(b). This amendment would enable GBR to have to pay penalties or compensation.”
“Clause 65 requires GBR to provide and publish a performance scheme that is designed to incentivise GBR, its subsidiaries or other train operators to minimise disruption or delay to other train services or the network. Train operators may be required to pay penalties if they cause disruption, may receive compensation where disruption is caused by a different operator’s operations and may receive bonuses to reward better than planned performance. So far, so good, you might say. However, it does not permit payments by GBR that relate to disruption outside its control.”
“Does the hon. Member not think our amendments could actually improve the system for GBR? We have talked, in this Committee and in the Select Committee sessions on the Bill, about the real gap in terms of the incentives for GBR to improve its services and improve itself. There is no reason why adding GBR as a body that would have to pay penalties and compensation would not introduce an incentive, in the same way we expect for operators, to ensure that the service provided on the taxpayers’ behalf and using taxpayers’ money is improved. At the end of the day, GBR is paying itself, but our amendments would at least give it an incentive to make sure that it does not need to pay compensation in the first place.”
“It strikes me that it might be like trying to claim for a bag that was stolen on holiday on insurance—you have to literally prove that you were mugged to get reimbursed. I would be interested in a bit more information on how “outside its control” will be defined.”
“To build on the point that my right hon. Friend the Member for Melton and Syston made, clause 65(3)(b) says that compensation may not be paid by Great British Railways “in relation to any disruption that is outside its control.” It strikes me that that relates to what the hon. Member for Birmingham Northfield said happens already: people have to decide what constitutes significant disruption, and what is inside its control. If I were an outside operator looking at this, I would be thinking, “Hang on a minute. Where’s the definition of what is inside GBR’s control?” There is a whole long list of options that I will not even begin to bore the Committee with for what could be said to be outside its control, but where is that conversation?”
“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?”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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?”
“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.”
“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?”