The article schedules in detail a number of important issues for rail, where we are dealing - as in all policy areas - with a barrage of legal ‘Known Unknowns’.
On July 27 the Government published an impact evaluation across 20 different areas. On transport, while first registering the unavoidably accurate “no one really knows” rider, the steer is that less (rather than more) change is likely. The report states:
“One of the common issues discussed… is how much Brexit will impact the standards and regulations the UK chooses to apply in its transport sector. In many instances they are likely to be similar, if not identical, to the EU’s. This is because of the role the UK played in establishing those standards to our own satisfaction in the first place. For example, the UK has been a leading advocate for the development of the single market in transport across all modes, to which end the UK has usually found itself aligned with the European Commission in promoting liberal market-based aviation and maritime sectors.
“In rail, UK domestic policy was often seen as one of the models for EU proposals, given the experience of the market reforms and liberalisation introduced in the UK 20 years ago. All of this suggests that transport post-Brexit may not look wildly different from how it looks now; but much remains unclear and will continue to do so until negotiations are at a much more mature stage.”
This is logical. The EU is (in economic rather than political terms) meant to be about liberalisation of markets to drive growth and prosperity. The UK market has indeed been at the forefront of rail liberalisation. While this has had its setbacks and challenges over 20 years (including the accident spate of 1997-2002, the collapse of Railtrack and the West Coast franchise), the benefits in terms of growth, investment and leading safety record have been clear and significant.
The UK market has active participation from across the EU (including the national operators of other Member States) and across the World. These gains have not been reflected in all other EU rail markets, particularly those that have remained more closed despite the ostensible legal requirements of procurement, competition and rail-specific access rights.
So while it is true to observe that the outcome is not known, there is no clamour externally for fundamental change for rail. The benefits of a large measure of continuity are mutual - in parallel the Government (and the civil service) has a massive task in grappling with areas that are far more problematic. The loudest rail protest lobby is for nationalisation, and that is an issue unconnected with EU law.
That is not to say that there will not be change in a number of areas. The temptation to soften or change requirements - for example, on vertical integration, technical standards or the criteria included in procurements on the level of UK economic activity or benefit - will be considerable. If that is done with a clear system-based vision (and done well), the potential to keep and enhance the current upsides of an energetic and liberalised market definitely exist.
However, caution is also needed. Newton’s Third Law (“for every action there is an equal and opposite reaction”) tends to apply, as do those other fundamental statutes: Murphy’s Law and the Law of Unintended Consequence.
UK rail will need to avoid the risk of trying to take wins that individually look tempting but which (taken together over time) weaken the market’s attractiveness and ability to deliver for passengers. So the walls, roof and foundations may well largely stay in place. The key for rail will be to see whether any attempted home improvements post-Brexit add value or accidentally remove some load-bearing walls…
