About Railways and Law: from Stockton & Darlington to HS2

This site marks the first step in an open ended project designed to draw together research themes on the impact of law on the development of railways, past, present and future.

The first ‘Railway Solicitor’

Since the dawn of the Railway Revolution, with the opening of the Stockton and Darlington Railway in 1825, the law and lawyers have played an instrumental role in the development of the system. Indeed, without the lawyerly skills of the solicitor to the promoters of the Stockton & Darlington, Francis Mewburn, the project might never have reached fruition. The private Act which he drafted to facilitate the construction of the line provided the template for the myriad similar measures upon which the Victorian Railway Revolution was built.

Railway accidents: liabilities and the need for regulation

However, it soon became clear that law would need to play a vital role in terms of regulating the nascent industry and dealing with the consequences of accidents. Carrying large numbers of people at speed over a network of lines of ever increasing scale and complexity created new risks. Lack of regulation, standardized procedures, poor signalling systems, human error and failures in equipment and infrastructure contributed to a new phenomenon; the railway disaster. The law was called upon to settle liabilities arising from such catastrophes, together with a myriad of smaller incidents. In this respect railways have formed the context for the development of important principles of tort law ranging from nervous shock (now psychiatric injury) to occupiers’ liability.

The scale and complexity of the industry, combined with the inherent risks of a mass transit system, created a need for regulation. However, in common with many of the great industries of the industrial revolution, it was some time before Parliament gained the wherewithal to effectively regulate the industry. Nevertheless , as expertise and experience accumulated, a complex system of regulation emerged governed by the new cadre of technocrats. This culminated in the Railway Regulation Act 1842 (some remnants of the Act remain in force to this day although it has been largely superseded) which marked the beginning of rail regulation as we know it today. There is scarcely a nut and bolt in the railway system which is not so controlled. Lawyers have played a crucial role in terms of translating engineering concepts into law and interpreting those regulations where necessary .

The magnitude and frequency of rail accidents has steadily declined and this may attest to the efficacy of the regulatory regime. Nevertheless, it would be unrealistic to assert that major rail disasters have been consigned to history. Law will doubtless continue to play a role in settling liabilities and the Rail Accident Investigation Branch will ensure that the causes are identified and lessons are learned.

Wars and re-structuring

The Twentieth Century witnessed the decline and rise of the railways. The industry was battered by two world wars and a series of massive restructuring exercises including nationalization and re-privatization.  The railways reached their zenith in the 1920s. Thereafter the fortunes of the industry have ranged from a policy of managed decline to a spectacular renaissance.

The railways played a vital role in both the First and Second World Wars. However both wars took their toll on the system. After the Great War, and almost exactly a century after the dawn of the railway revolution, a massive rationalization of the industry was brought about by the Railway Act 1921. The myriad of companies which had hitherto operated the system were regrouped into the ‘Big Four’: the London & North Eastern Railway (LNER); the London Midland & Scottish Railway (LMS); the Great Western Railway (GWR) and the Southern Railway (SR). This created a huge and complex task for lawyers in terms of the drafting of the legislation and the merging of assets.

The railways played an equally vital role in the Second World War effort; once again the system was run into the ground (although the railways were effectively bankrupt even before the outbreak of war). This necessitated another major restructuring of the industry and this time full nationalization was prescribed as the cure. To this end the Transport Act 1947 established the British Transport Commission which assumed control of a nationalized rail industry under the ‘British Railways’ banner. This was part and parcel of a plan to assume state control of all transport assets with a view to creating a fully integrated and centrally planned system. Operational powers pertaining to railways were delegated to the Railway Executive. This management structure was changed by the Transport Act 1962 which got rid of this two tiered structure and placed the system in the hands of the newly created British Railways Board. This structure remained in place until re-privatization in the 1990s.

 

The decline and fall of the railways in the post war years

However, in the post war years the newly nationalized industry sank into a period of seemingly terminal decline. There was an assumption that the motorcar and road transport generally would provide the solution to all the countries transport needs. Railways were seen as old-fashioned and dirty and a policy of managed decline was adopted in the 1960s. This culminated in the Beeching report, ‘The Re-shaping of British Railways’ which resulted in the closure of several thousand miles of track – predominantly loss-making branch lines (with the notable exception of the Great Central).

There is still much debate regarding whether or not the Beeching report was a good thing for the industry. Irrespective of which view one adopts, there can be no doubt that the report portended major  in the industry. As Stewart Joy begins his article, Public and Private Railways 32(1) Journal of Transport Economics and Policy, ‘the modern railway era began with the Beeching Report The Re-shaping of British Railways.’ Henceforth there was much agonizing about how best to structure the industry so as to return it to profitability. Given that the railways had not been a profitable business for decades this may well have seemed an unobtainable objective.

The road to privatization

However the road to re-privatisation was a long one. In the 1970s British Rail was characterised by inefficiency, restrictive practices and strife with the unions. Margaret Thatcher’s Conservative Government of the 1980s set about the task of breaking up and selling off the monolithic nationalized utilities. Privatization of the railways was perhaps the most complex and ambitious of these sell-offs. Indeed, it did not occur until the early 1990s. The main problem was how best to carve up the industry into manageable components in a manner which would enable private enterprises to operate them at a profit.

To this end the Railway Act 1993 established the rail system which we know today. Although, the structure which emerged bore no relation to the pre-nationalisation ‘big four’ railway companies of the halcyon inter-war years. Instead, a highly complex system was introduced whereby the ownership of the track and infrastructure was separated from the rolling stock and the operation of services. Ownership and control of the railway tracks and other infrastructure was vested in a corporate body (the current incarnation of which is Network Rail) and placed at arm’s-length from the State. As regards the operation of actual services, a franchising system was introduced. To this end private companies were invited to tender for franchises enabling them to operate services on particular routes for a specified number of years.

2013 marked the 20th anniversary of the ground-breaking Railway Act 1993. The franchising system has proved controversial throughout that time and has provided much work for lawyers. Most notably, the debacle concerning the renewal of the West Coast mainline culminating in judicial review proceedings and an ongoing media frenzy.

The rennaisance of the railways: A second railway age?

Irrespective of these difficulties the railways are continuing to enjoy an ever growing renaissance. Passenger numbers are now at their highest since the Zenith of the Railways in the 1920s. Moreover new lines are actually being built, something which would have been unimaginable in the wake of Beeching. There has been a proliferation of light railway schemes, such as tramways, and modest progress has been made in terms of reversing some of the Beeching cuts. Larger recent projects have included high-speed one linking the capital with the channel tunnel and Crossrail. As regards the immediate future, we are about to embark upon the most ambitious rail building program since the close of the Victorian era. Construction of a new high speed rail network will be well underway as we approach the bicentenary of the dawning of the railway age.

The challenges for the law: ‘making the trains go’.

In many respects this new era of railway building brings us full circle and highlights the role of law as a means of authorizing the construction of new lines. Although one can draw certain parallels with the authorization of new lines in the Victorian era, the legal landscape today is more complex and affords more scope for litigation. EU legislation on the assessment of environmental effects and the exponential growth of judicial review has already made its mark on the HS2 project.

All this is good news for lawyers but it does raise one very interesting question on which to end this very broad introduction to the subject. In ‘the Last Train to Scarborough’ Andrew Martin’s Jim Stringer railway detective character contemplates entering the legal profession by taking articles with one of the many firms which handled the interests of the North Eastern Railway. The career move is driven by Stringer’s wife, Lydia, who is determined that he should ‘get on’ and achieve a higher station in life. As a frustrated footplateman  Stringer is dubious about moving still further away from the operational side of railways. He laments that lawyers are more concerned about ‘talking about trains’ rather than ‘making the trains go’. So, as we enter the ‘second railway age’ it remains to be seen whether the law will serve to ‘make the trains go’ as opposed to derailing them.

 

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