I fear a state monopoly of the rail timetable, fares and capacity
Virgin wanted to operate three new services including Euston to Birmingham; First Group applied to operate new services from Euston to Rochdale; and Wrexham, Shropshire & Midlands Railway Company applied to operate new services to Wrexham.
Their problem was that in May 2020 — four years before they made their applications — Network Rail had made a formal declaration that part of the route, from London to Leighton Buzzard, counted as 'congested infrastructure'. They made applications that seemed doomed to fail, unless the rail regulator intervened.
• Great Bolshevik Railways going the wrong way
The regulator concluded that this part of the line was 'currently unable to accommodate any of the proposed applications'. That verdict depended heavily on the value the regulator placed on Network Rail having some spare capacity available for existing and planned services. Also, critically, it depended on the existing timetable and service specifications for the incumbent operators, and for the HS2 line north of Birmingham.
Will the 'existing timetable and service specifications' be maintained by Great British Railways, the planned state-owned railway company? If not, will the private or 'open-access operators' like Virgin be able to use the spare capacity ? If the answer to both questions is no, the future for passengers is bleak.
Subject to there being any appeal, the regulator's decision has brought to the fore first, to my mind, a predictable clash between an independent regulator and a government hostile to any engagement by the private sector in its state-owned and controlled railway, and secondly a complete absence of any sense of direction or commitment on the part of the government as to the future of the timetable and service specifications.
• Virgin Trains' attempt to get back on to the railways blocked
The regulator's decision also showed how its so-called 'not primarily abstractive', or NPA, test would work, even though its decision was not based on it.
This test is used to help the regulator to balance its statutory duties, in particular those to promote competition for the benefit of users and to have regard to the funds available to the secretary of state. Of five applications it looked at, four would have passed the test. However, the government argued that only one of the five would have passed the test.
Moreover, the regulator's decision refers to Department for Transport submissions made to it in June this year in which the government 'stressed the need for ORR to take steps to fully understand and consider the cumulative scale and impact of abstraction when it assesses open-access applications'.
My concern is that a state monopoly in control of the timetable, fares and capacity, and intolerant of any risk that competition may erode that monopoly through the provision of better services, is a bleak future for us all.
John Swift KC was Rail Regulator, 1993-1998
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