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: