Rail Reform Progress and the Draft Access and Use Policy

The Railways Bill, having passed through the House of Commons, is currently being considered in the House of Lords. Once it becomes law, it will lead to the formation of Great British Railways alongside the biggest change in network access rights and regulation since British Rail was privatised in the mid-1990s. What are the key provisions in the proposed legislation, particularly with respect to the rail freight sector and gaining access to the network?



The Railways Bill currently passing through Parliament will, once it becomes law, result in the formation of a new integrated railway company, currently branded as Great British Railways (GBR). GBR will become responsible for track infrastructure management (currently undertaken by Network Rail) and the planning/delivery of most passenger rail services in England. It will be owned by the Department for Transport (DfT), though it should operate on a day-to-day basis at ‘arms length’ from Government. GBR will: 

• Operate the national track network on a day-to-day basis, including planning and devising the working timetable.
• Specify and directly operate most passenger rail services in England, including those longer-distance services which extend into Scotland and Wales.
• Set fares for GBR passenger servcies and operate the main sales platforms for tickets (including a single website and app).
• Work closely with the devolved administrations that operate their own rail services, including coordinating on capacity and timetabling. This is currently London, Merseyside, Wales and Scotland, but could be extended to other areas (e.g. Manchester).
• Work closely with mayoral/combined authorities in England to ensure GBR passenger services align with local/regional strategies, and operate any additional local services which have been specified and funded by those authorities.
• Promote rail freight and grant private sector freight operators ‘fair access’ to its track infrastructure under a new access regime underpinned by legislation.
  

Open access passenger operators will remain where they add value and capacity to the network. The Office of Rail and Road (ORR), in addition to its safety regulator role, will provide economic oversight and act as the ‘point of appeal’ for access disputes to GBR’s track infrastructure from non-GBR operators. Non-GBR trains (those operated by the devolved administrations, open access passenger and freight) will continue to pay access charges to operate over GBR’s track infrastructure. Capital investments in enhancements will continue to be funded directly from the DfT or from devolved administrations.

GBR will not be directly involved in rail freight activities. The rail freight operating companies (FOCs) will remain in the private sector (and will contract with cargo owners and shippers as they do currently), but will need to operate their services over GBR’s track infrastructure. GBR will therefore need to provide access to its network and paths in the timetable. Clause 3 of the Railways Bill, which sets out the statutory functions of GBR, states that it must facilitate the provision of rail services by ‘persons other than GBR’; this includes rail freight because, as noted, the FOCs will remain separate businesses.

Clause 15 states that the Secretary of State must prepare and publish a long-term strategy for the development of the railway network in Great Britain, with Clause 16 requiring GBR ‘to have regard to’ that long-term strategy and strategies published by the devolved administrations and combined/mayoral authorities. While these clauses do not specifically mentioning freight, the strategies could include schemes and measures that relate to the freight sector.

Clause 17 will place a statutory duty on the Secretary of State for Transport to set and keep under review a long-term growth target for the rail freight sector. In exercising its statutory functions (as per Clause 3), GBR must ‘have regard to the growth target’. This is currently set for rail freight to grow by at least 75% in terms of freight moved by 2050, with an interim target of 40% by 2040 having recently been published. This is an important clause as it places a statutory requirement on GBR to account for freight demand and freight growth as it undertakes its other activities, including specifying passenger services and planning the working timetable.

Clause 59 will require GBR to publish document(s) setting out the policies and procedures covering how train operators gain access to and use GBR’s track infrastructure (the Access and Use Policy or AUP). Various sub-clauses require that the AUP must set out the procedures for applying for access, the criteria to be applied when making decisions on access applications (including dealing with competing demands) and the procedure for resolving disputes. Important to note that this clause is not the actual AUP, but that GBR has a statutory duty to produce such a policy and what it must contain. It should also be noted that the production of an AUP is a statutory function, and that GBR must have regard to the rail freight growth target when exercising these functions. 

A draft AUP (for consultation) was published in September 2026, with the consultation running until the start of December 2026. The draft AUP explains how GBR will discharge its obligations under Clause 59 (and other statutory duties, some of which have been described in this article) under the following three categories:

• Capacity allocation – how GBR will decide best use of capacity and devise the timetable;
• Terms of access and use - how access contracts provide permission to use GBR infrastructure; and
• Charging and performance regime.

Clause 60 will place a duty on GBR to produce an infrastructure capacity plan setting out how best use can be made of the GBR track network. In preparing and revising the capacity plan, GBR must have regard to the need to accommodate rail freight services (alongside its own passenger services and other such services). Again this is an important function for GBR with respect to freight, in that it must set out how it intends to accommodate freight services (and growth) on its track network alongside other services it wants to operate or others wish to operate. Parties may appeal to the ORR should they object to provisions contained in the plan.

Clause 61 will require GBR to produce and publish a working timetable for the railway network covering all planned train movements. Non-GBR train movements in the timetable (including freight) can only be changed or removed by agreement with the train operator. Operators may appeal to the ORR where they have applied to GBR for a path in the timetable but has not been included (or with onerous conditions). This is important for the freight sector as it means GBR cannot change or remove freight paths from the timetable except by agreement with the FOC, and it provides for an appeal to the ORR when disputes arise. Clause 62 sets out the various steps (at a high level) that GBR must undertake when preparing the working timetable. It requires that a draft timetable is published for examination, and that any objections are considered and a revision produced where appropriate. It provides for an appeal to the ORR when disputes arise. Again, this is an important function for GBR with respect to freight. 

Clause 63 will require GBR to ensure that, when preparing the working timetable, it retains sufficient track capacity to operate GBR passenger services (and those it expects to run in the future) alongside access for engineering/maintenance requirements. This suggested clause has raised concerns within the freight sector in that, were a dispute to arise with a FOC on track access, it will be able to effectively ‘prioritise’ its own services in the timetable. 

Clause 67 sets out the procedures whereby non-GBR operators (including freight) can appeal to the ORR on decisions relating to access and charging. ORR will determine the appeal using the same principles as a judicial review i.e. whether the decision was lawful, was due process followed and does the outcome contradict the supporting evidence. This is important for the freight sector as it provides the statutory means of resolving disputes with GBR. However, unlike the current system whereby ORR can direct Network Rail (under the Railways Act 1993), on issues relating to the AUP and access charging the ORR will only be able to require GBR to ‘reconsider’ its original decision (effectively quash the decision and ask GBR to redetermine). This suggested clause has raised concerns within the freight sector in that it is less powerful than the current ability to ‘direct’ Network Rail.

Overall, the Railways Bill should be positive for the rail freight sector. GBR will have a statutory function to accommodate freight services, and it must have regard for the long-term growth target. The infrastructure capacity plan and the working timetable must have regard for freight demand and growth, and GBR cannot change or remove freight paths from the timetable except by agreement with the FOC. There will also be an appeals process with the ORR relating to access and charging. However, concern has been raised within the freight sector that GBR can effectively ‘prioritise’ its own services in the timetable and that the ORR appeal process is less powerful than the current ability to ‘direct’ Network Rail.