1. Measures in response to actions of P&O Ferries

1.1 Background

On 17 March 2022, ferry operator P&O Ferries told approximately 800 of its employees that they were being made redundant with effect from that day. Peter Hebblethwaite, Chief Executive Officer of the company, said that it had done this to bring in a different operating model. This would require fewer staff, who would be employed by an agency and paid per hour worked. These workers’ pay would be regulated by International Transport Workers’ Federation (ITF) standards rather than the UK national minimum wage. Mr Hebblethwaite said that this operating model would cost approximately half that of the previous model.

In evidence given to the House of Commons Transport and Business, Energy and Industrial Strategy Committees, senior executives from the company said that they had knowingly broken the law by not consulting the relevant unions before terminating the workers’ employment. Peter Hebblethwaite said “there is absolutely no doubt that we were required to consult with the unions. We chose not to do so”.

Queried about whether the Government could take action against the company for this breach of the law, Parliamentary Under Secretary of State at the Department for Business, Energy and Industrial Strategy Paul Scully said that breaches of this law are remedied through an employment tribunal rather than through the courts. He also said the Government had asked the Insolvency Service to investigate whether any powers were available to the Government regarding this breach.

Some commentators have also queried whether P&O Ferries breached the law by not giving enough notice of the redundancies to the relevant authorities. Under the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended), employers who plan to make 100 or more employees redundant within 90 days must notify the secretary of state in writing 45 days in advance. Not doing this would be a criminal offence. If the redundancies concern seafarers on vessels registered overseas, the employer must notify the overseas authorities of the state where the vessel is registered rather than the secretary of state. P&O Ferries vessels were registered in Cyprus, the Bahamas and Bermuda. In evidence to the committees, Mr Hebblethwaite said that notification letters were sent to Cyprus, the Bahamas and Bermuda on 17 March 2022, the same day employees were told they were being dismissed.

Legal commentators have said it is unclear whether failure to notify a state other than the UK at the required time would be a criminal offence. Jason Chuah, Professor of Commercial and Maritime Law at the City Law School, said:

As to what the consequences are […] there is some concern or some troubling thoughts as to whether the failure to notify the ship registries in these different jurisdictions would attract a penalty. The relevant section simply refers to the duty to notify, or the failure to notify, the secretary of state; it does not actually refer to a failure to notify the flag state, so we are a little bit unsure whether the failure to notify within those set parameters would attract any kind of sanctions under the Trade Union and Labour Relations Act.

Referring to the duty to notify relevant authorities, Mr Hebblethwaite said that “we are clear that we have not breached that law”.

1.2 Legislative measures

The Government has committed to bringing in legislation in response to the P&O Ferries’s actions. In a statement to the House of Commons on 30 March 2022, Transport Secretary Grant Shapps said that the Government would give British ports new statutory powers to refuse access to regular ferry services that did not pay their crew the national minimum wage. He said that this would be done through primary legislation amending the Harbours Act 1964.

Mr Shapps explained that the Government had initially planned to introduce more wage protection for workers by changes to the National Minimum Wage Act 1998. However, it had been advised that this would not be effective because “maritime law is governed by international conventions that would too easily override changes to domestic laws”.

Shadow Transport Secretary Louise Haigh said that the opposition welcomed the Government’s intention to ensure all workers on routes calling at UK ports were paid the national minimum wage. However, she asked for confirmation that the national minimum wage would apply on the entirety of all UK international routes, and not only in British waters.

In a letter to Mr Shapps, Mr Hebblethwaite said that P&O Ferries did not oppose the introduction of new minimum wage legislation. It said that most of its anticipated savings “would come from the removal of job duplication and the benefits of increased flexibility”.

2. High-speed rail: Crewe to Manchester

A hybrid bill to make provision for the construction of a high-speed rail line between Crewe and Manchester was introduced in the House of Commons on 24 January 2022. A carry-over motion for the bill was agreed on 25 April 2022.

2.1 Background

The high-speed line between Crewe and Manchester is part of the HS2 project designed to connect some of England’s largest cities with high-speed rail links. The first phase, from London to Birmingham, was provided for by the High Speed Rail (London–West Midlands) Act 2017. Construction on this line has started. Phase “2a”, from Birmingham to Crewe, was provided for by the High Speed Rail (West Midlands–Crewe) Act 2021. The Government expects both of these lines to be finished “by around 2035”.

Phase “2b” of the project has been split into two elements “HS2 west” and “HS2 east”. HS2 west will run from Crewe to Manchester and is the subject of the bill being carried over into the 2022–23 session (see below). The original HS2 proposal, published by the Labour Government in 2010, also included plans for the line to extend east from Birmingham to Leeds. However, in the Integrated Rail Plan for the North and Midlands published in November 2021, the Government did not commit to building the line as far as Leeds. It said it would extend the high-speed line from Birmingham to East Midlands Parkway and that it would “look at the most effective way to run HS2 trains to Leeds”.

2.2 High Speed Rail (Crewe–Manchester) Bill

The High Speed Rail (Crewe–Manchester) Bill was introduced in the House of Commons on 24 January 2022 but did not receive second reading before being carried over to the new session.

The bill is a hybrid bill. These bills apply generally but affect some people differently from others. Hybrid bills follow a different procedure to that of public bills, incorporating elements of private bill procedure. People who are specially affected by the bill can submit petitions against it and certain individuals and groups can state their case before a select committee.

The bill would give the Government the powers required to construct the Crewe to Manchester part of the HS2 network. The bill includes provisions covering compulsory land purchases, planning permissions and rights over land.

2.3 Rail debate December 2021

The Labour party supports the construction of HS2 but has criticised the Government’s decision not to build the eastern leg as far as Leeds, as originally planned. In a debate on 8 December 2021, Shadow Transport Secretary Louise Haigh argued the extended line would bring benefits:

[…] if we were in government now, we would be committed to getting on with delivering HS2 and Northern Powerhouse Rail in full. The benefits of HS2 being extended from Birmingham to Leeds, and of a new, high-speed line between Leeds and Manchester, would be to get those fast, long-distance trains off the existing infrastructure and to free up capacity for local services and freight.

Ms Haigh argued, however, that without the eastern leg of HS2 extending to Leeds, the costs of the HS2 project would outweigh the benefits:

The business case for HS2 without the eastern leg no longer represents value for money. I imagine that many of those in the home counties will be wondering why their lives have been turned upside down for a project that would not even have been started under Treasury rules if it was not going all the way to Leeds.

Mr Shapps responded that the Government was undertaking an ambitious plan of rail investment:

[…] we are not just building one high speed line from Crewe to Manchester; we are building a second high speed line from Warrington to Manchester to west Yorkshire, slashing journey times across the north, and a third high speed line from Birmingham to the east midlands with HS2 trains continuing to central Nottingham, central Derby, Chesterfield and Sheffield on an upgraded and electrified midland main line.

3. Great British Railways

The Government has expressed its intention to introduce legislation to change the structure and operation of the railways in Britain. This would involve setting up a new body, called Great British Railways, to control and manage all aspects of the railways.

While government ministers have consistently spoken of the plans as concerning Britain, Scottish ministers have highlighted that most rail powers are devolved in Scotland. On 15 March 2022, Bill Reeve, Head of Rail at Transport Scotland, told members of the Scottish Parliament that it was not clear how Great British Railways would operate while also respecting devolution.

3.1 Background

Since the privatisation of the railways in the 1990s, both public and private sector bodies have played a part in running the railways. The railways in Great Britain have the following key elements:

  • The Government acts as a procurement authority, network funder, and sponsor of major rail projects and rail bodies. The Government is also the sole shareholder of Network Rail, the body that owns and operates most of the national rail infrastructure.
  • Passenger train services on the rail network are provided by different franchised operators. Most of these are specified by the UK Government, with the others specified by different devolved governments or authorities. The boundaries between most of these operators are broadly geographic, with relatively little overlap. In addition, ‘open access’ operators not contracted by the Government operate a small number of services on the national network, sometimes competing directly with franchised operators on the same journeys.
  • The physical infrastructure of the railway is owned and managed separately from the train operators. Network Rail runs the majority of the infrastructure of the railway as an arm’s length body of the UK Government. Network Rail also leads the process with train operators to develop the national rail timetable and allocate access to the rail network.
  • The industry is overseen by an independent safety and economic regulator, the Office of Rail and Road (ORR). It sets targets and regularly reports on the performance of Network Rail, as well as overseeing competition and consumer rights. It monitors Network Rail, oversees competition and consumer rights, and can use its enforcement powers if Network Rail or operators fail to comply with their licence obligations.
  • The Rail Safety and Standards Board (RSSB) works with the ORR to improve safety, performance and value for money across the industry.

At the beginning of the Covid-19 pandemic, in March 2020, the Government introduced changes to franchise agreements to ensure the railways continued to operate. Under the ‘emergency measures agreements’, normal financial mechanisms of franchise agreements were suspended. All revenue and cost risks were transferred to the Government. Operators continued to run services for a pre-determined fee, set at a maximum of two percent of the cost base of the franchise before the pandemic began.

In September 2020, the Government replaced the emergency measures agreements with ‘emergency recovery measures agreements’. These agreements, which were due to run up to 20 March 2022, were similar to the emergency measures agreements, but were more “demanding”, with “tougher performance targets” and lower management fees. The Government said these agreements were designed to ultimately end franchising agreements.

Emergency recovery measures agreements are being replaced with ‘national rail concessions’. These are modified contracts between the Department for Transport and train operators, lasting for up to six years. These are intended to be part of a transition to a system run by Great British Railways.

3.2 Williams–Shapps Plan for Rail

In May 2021, the Government published ‘Great British Railways: The Williams–Shapps Plan for Rail’. The Government had initially asked Keith Williams to investigate the structure of railway operations and proposals for reform after what the paper described as “chaotic” timetable changes in 2018 and the failure of the East Coast franchise. In March 2020, the review was extended to take into account challenges arising from the Covid-19 pandemic.

Under the plans set out in the report, a new public body called Great British Railways would be created. It would own the infrastructure, receive the fare revenue, run and plan the network and set most fares and timetables. Great British Railways would absorb Network Rail, which currently owns the railways infrastructure. The Government does not plan, however, for Great British Railways to operate the trains directly. The Williams–Shapps plan says that “in most cases, Great British Railways will contract with private companies to operate trains to the timetable and fares it specifies”. These will be known as passenger service contracts.

The Government argues that the proposal would create a simpler structure and make the running of the railways more efficient:

Under single national leadership, our railways will be more agile: able to react quicker, spot opportunities, make common-sense choices, and use the kind of operational flexibilities normal in most organisations, but difficult or impossible in the current contractual spider’s web.

3.3 Planned legislation

The Government plans to introduce legislation to create Great British Railways as a legal entity. The legislation would enable franchising powers to be transferred from the Department for Transport to Great British Railways.

In evidence to the House of Commons Transport Committee, Transport Minister Wendy Morton said that the Government hoped the legislation would be in place by “early 2024”. In response to questions concerning the extent of government control over Great British Railways, Ms Morton said that ministers would have statutory powers to issue binding directions and guidance, and would “still have a strong role to play”. The secretary of state for transport would have the power to dismiss the chief executive of Great British Railways.

The Government also said that the legislation would include reforms to the railway regulator, the ORR, and the watchdog for transport users, Transport Focus. The Government said that it would run a consultation before introducing the legislation.

4. E-scooters

On 27 April 2022, Mr Shapps said the Government planned to announce measures concerning e‑scooters in the Queen’s Speech.

4.1 Background

At present, e-scooters fall within the legal definition of a motor vehicle. This means it is normally illegal to use them on public roads unless they comply with the legal requirements to do so. E‑scooters do not meet these requirements. It is also illegal to use them in spaces set aside for pedestrians, cyclists or horse-riders.

The exception to this rule is when e-scooters are rented as part of an official trial. There are over 30 areas across the UK involved in the trials, including Bournemouth and Poole, Derby, Liverpool, Newcastle, and certain London boroughs. In these trial areas, it is legal for rental e-scooters to be used on roads (excluding motorways) and in cycle lanes, but not on pavements. There are several requirements for riders, including holding a driving licence. Government guidance states that safety equipment such as helmets should be worn but this is not a legal requirement.

E-scooters available through government trials have certain requirements: their speed is limited to 15 miles per hour and they must have automatic lights. In addition, users must have a driver’s licence.

The Government established a national monitoring and evaluation programme to help it assess the outcome of the e-scooter trials. The evaluation is looking at the usage, availability, and user demographic of e-scooters during the trial, amongst other things. Data is also being collected on accidents and injuries in trial areas. The report is due to be published in “late spring 2022”.

Incidents of harm involving e-scooters have been widely reported in recent years. The BBC reported that the emergency services attended 713 e-scooter accidents in 2021, compared with 392 in 2020. According to government figures, there were 931 casualties and three fatalities involving e-scooters in the year to June 2021.

4.2 Planned legislation

The Transport Secretary told the House of Commons Transport Committee on 27 April 2022 that the Government planned to introduce legislation to allow the Government to regulate e-scooters in the 2022–23 session. The Government would then be able to stipulate that all e-scooters sold met certain standards concerning speed, power and lights, among other things. He said the Government wanted to “crack down on the private market and make it illegal to sell e-scooters which don’t meet the regulatory standards” the Government plans to bring in.

During the committee hearing, Simon Jupp (Conservative MP for East Devon) argued that the use of e-scooters had led to many collisions and “caused problems on the streets of this country”. Mr Shapps said that once the standards for privately owned e-scooters had been set, the Government could then decide how e-scooters should be used.

Speaking for the Opposition in a debate in the House of Lords in January 2022, Lord Rosser said that e-scooters “could have much to offer” as they could provide a “safe, relatively cheap and environmentally friendly method of transport”. He argued, however, that the Government needed to ensure that there were “relevant and appropriate regulations in place to address the safety concerns over the use of e-scooters if their general use is to be given the go-ahead”.

5. Self-driving vehicles

On 20 April 2022, the Government announced that it planned to introduce changes to the Highway Code to provide for self-driving cars on Britain’s roads. It said these changes would enable drivers to “experience the full benefits of the first self-driving vehicles when they arrive”. The Highway Code applies in England, Wales and Scotland.

Section 38 of the Road Traffic Act 1988 allows the secretary of state to revoke, vary, amend or add to the provisions of the code. To do so, they must consult with “such representative organisations as [they] think fit”. The secretary of state must also consult Parliament by laying the proposed changes before both Houses. The proposals are subject to a 40-day approval process which begins on the day they are laid. This period must not include any time when Parliament is dissolved, prorogued, or adjourned for more than four days. If during this period either House resolves against the proposed changes, the secretary of state must not make them. However, they are not required to consult Parliament for any alterations that are “merely consequential on the passing, amendment or repeal of any statutory provision”.

On 25 April 2022, the Government laid its proposed revisions to the highway code before Parliament. The changes would provide that only vehicles listed by the secretary of state as self-driving would qualify as self-driving for the purposes of the code. The proposed changes state that if a self-driving vehicle were driving itself in a “valid situation” (dependent on weather, type of road, and other considerations), the driver would not be responsible for how it drives. The driver would be allowed to turn their attention away from the road and view content on the vehicle’s inbuilt screen. They would still be required, however, to follow relevant laws such as being fit to drive and not using a hand-held mobile device (with certain exceptions).

The Government has said that the first approved self-driving technology is likely to be for vehicles travelling at slow speeds on motorways, such as in congested traffic.

In January 2022, the Law Commission and Scottish Law Commission jointly published a report with recommendations for legal reform to “enable the safe and responsible introduction of automated vehicles”. These recommendations included:

  • writing the test for self-driving into law, with a ‘bright line’ distinguishing it from driver support features, a transparent process for setting a safety standard, and new offences to prevent misleading marketing;
  • a two-stage approval and authorisation process building on current international and domestic technical vehicle approval schemes and adding a new second stage to authorise vehicles for use as self-driving on roads in Great Britain;
  • a new in-use safety assurance scheme to provide regulatory oversight of automated vehicles throughout their lifetimes to ensure they continue to be safe and comply with road rules;
  • new legal roles for users, manufacturers and service operators, with removal of criminal responsibility for the person in the passenger seat; and
  • holding manufacturers and service operators criminally responsible for misrepresentation or non-disclosure of safety-relevant information.

The Government has said that it expects to have a full regulatory framework in place to “support the widespread deployment of the technology” by 2025.

Cover image by Shutterbug75 on Pixabay.