Letter to Paul Maynard – the DfT must ACT NOW and avert the rail scandal of a generation…

With the agonizing news of the ASLEF drivers’ strike, announced today, we cannot stand by and continue to watch this situation be pushed to an even bigger crisis. A group of ABC campaigners have just dispatched a letter to Paul Maynard, and include the full text below for those who would like to join us in sending a copy.

Our letter to Paul Maynard, 28 Nov: maynard-letter-28-nov

Paul Maynard’s letter to Louise Ellman MP, 22 Nov: ellman-letter-22-nov

Dear Paul,

We are writing in response to your letter to MPs of 22nd November, which has now been widely circulated on social media.

You state in your letter that you are not even remotely happy with the situation – for passengers living through this on a daily basis, that is an understatement in the extreme. With today’s announcement of an ASLEF drivers’ strike, the damage to the health and livelihoods of thousands of people in the south is about to reach its peak, and still your Department does not act – which is not only in your remit, but your urgent responsibility.

The 12-car “state of the art” 700 class Thameslink trains that you refer to do offer slightly more passenger capacity, if not comfort, by removing seats and depriving standard class passengers of tables on the long commute from Brighton to London. However, as you know, neither the Thameslink programme nor these new trains are central to the dispute. The existing 377 class trains have also been equipped with cameras for Driver Controlled Operation and it is the botched attempt by Govia Thameslink Railway (GTR) to move to Driver Controlled Operation, not new trains or the Thameslink programme, which has crippled Southern.

Oddly, your own department agrees with us in a letter published online from Alana Rea, Correspondence Manager for Passenger Services, on 16th November which states “the current situation has come about due to the intersection of three issues: understaffing on the part of GTR; the industrial action by the RMT union; and substantial engineering issues…” You seem to have omitted to mention understaffing on the part of GTR in your letter to Members of Parliament – why is this?

You refer twice in your letter to the current strikes as being inexplicable. In November 2015 the ASLEF and RMT unions published a statement online stating they were “completely opposed to Driver Only Operation” and committing to “campaign in unity to oppose any extension of DOO.” Significant union opposition to GTR plans was completely predictable, and even forecast in the RSSB report commissioned into the matter. Instead, the DfT concealed plans for DOO from consultation with the unions, the public, and disability groups, and chose a stealth tactic of introduction; with GTR pushing industrial relationships to a breakdown early on with such measures as preventing staff from parking at stations, and preventing rest day working. For a railway which your own department states is understaffed, the results have been disastrous.

Of the many concerns being raised over this hasty, stealth-like and incoherent implementation of DOO is the problem of disability access, as relates to the Platform-Train Interface (PTI). It is clear that the issue of PTI has been completely overlooked – and is mentioned only once in the so-called “independent” RSSB safety report on DOO. Since that time, we have seen GTR change the OBS role to include dispatch duties (so late did they acknowledge this oversight). At the same time, we note the new maps on the 377 trains, which now requires advance booking for disabled passengers all over the network. This compulsory pre-booking of travel, combined with the RSSB report’s clear anticipation of ‘natural wastage’ of staff, seems to indicate a future without the right of ‘turn up and go’ travel for the disabled – a clear breach of the Equality Act that Ann Bates OBE has suggested will set back access rights 30 years!

Passengers are exhausted. We can’t take our business elsewhere, we can’t get straight answers, and we are increasingly aware that we are viewed as cannon fodder in this dispute. We now understand that the enhanced compensation promised by the then Prime Minister in June this year will consist of 15 minute delay repay funded by our taxes, which has no firm date to be introduced.

We are waiting to learn whether your department will allow GTR to claim force majeure in connection with Southern – a verdict which is now unacceptably overdue. Given that your department recognises this railway was understaffed, industrial action over DOO was entirely predictable, and the disruption from Thameslink was anticipated and built into the commercial terms of your contract, we can assure you passengers would find awarding force majeure unjust.

Your letter does not propose a firm course of action, yet we need one now more than ever. Only the DfT has the authority to force a resolution of the industrial action perhaps in line with the swiftly resolved and forgotten Scotrail agreement. Only the DfT can release the details of how this franchise is managed and accept that the public interest in this outweighs commercial interests. When the Department removed commercial risk from GTR in this management contract, it assumed accountability and is now failing the public with what is likely to go down in the history books as the rail scandal of a generation.

The quality of our working and family lives is now intolerable, and the damage wreaked on hundreds of thousands of the public in the South is quite frankly, unforgiveable. We insist on your urgent action now—to continue in the unaccountable manner you have chosen is nothing less than a betrayal of the public.

We await a response at your earliest convenience,

Commuter campaigners from the Association of British Commuters.

 

 

 

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….

RSSB report leaked for Private Eye expose – now, we invite you to pick it apart…

After being quietly removed from the Rail Safety and Standards Board website some months ago, the full RSSB report on the safety aspects of DOO was sent to us today after previously being leaked to Private Eye. We attach the full PDF here and invite you all to pick it apart!

Please note, this is a publicly available document that has been very difficult to get hold of. The industry insider who passed it on to us warned it is ‘full of contradictions’ and ‘clearly geared towards a certain outcome’.

With so many contradictory statements now being made about this controversial report, we invite you to read it for yourself and form your own opinion.

Read the full report here: rssb-report-on-doo

Read the Private Eye expose here:

private-eye

 

 

 

One week to go until a full response from the Department for Transport

After two and a half months of highly unsatisfactory correspondence with the Department for Transport, we are now awaiting the final deadline for a response to our Letter Before Action; due Monday 21st November.

On 28th October, we dispatched our Letter Before Action (a 30-page document detailing our legal grounds) to the Secretary of State for Transport, Chris Grayling.

The Department informs us that they have now consulted counsel and are preparing a ‘reasoned and helpful’ response.

We expect their full response on 21st November, a seven-day extension on our original LBA deadline of 14th (a reasonable delay considering the weight of the document we sent them.)

We are also awaiting the result of FOI requests seeking the full disclosure of Govia’s franchise agreement and remedial plan – documents that could hold the key to ending the Southern Rail crisis. Our final deadline for these FOI requests is 17th November, so stay tuned for further updates over the next week. Whatever happens, this is definitely the point where things start to become more interesting!

Many thanks for all your fantastic support and patience, and we look forward to sharing more soon…

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.

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