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  • Independent legal opinion from Michael Ford QC undermines government claims that the dispute is just between the rail operators and unions
  • Transport Secretary has “very extensive powers” over what can be agreed between rail operators and unions
  • Train companies are following the direction of the government under threat of financial sanctions, says TUC

An independent legal opinion published today (Sunday) undermines the Conservative government’s claims that the rail dispute is just between the rail operators and unions, and that ministers have no role in negotiations.

And it clarifies that the contracts between rail operators and government allow the government to apply financial sanctions if operators do not follow the directions given by the government in the current dispute.

The legal opinion, commissioned by the TUC from Michael Ford QC of Old Square Chambers, advises that:

  • The Transport Secretary has “very extensive powers” over what can be agreed between rail operators and unions, and “very significant contractual power” to direct how industrial disputes are handled.
  • Rail operators are not free to agree terms and conditions with their employees without the involvement of the Transport Secretary, Grant Shapps.
  • Before discussing any changes to pay, terms & conditions, redundancies, or restructuring with rail unions, rail operators must agree a mandate with the Transport Secretary.
  • If a rail operator fails to agree a mandate before any such discussions, it can face financial penalties.
  • The Transport Secretary has issued a ‘Dispute Handling Policy’ that rail operators must comply with, and he has “overarching direction and control of the strike… either because the strategy is agreed with the Secretary of State or because the Secretary of State simply directs how the strike is to be handled”.
  • These provisions mean that “Train operators do not have freedom to negotiate the matters which have given rise to the current dispute”.

The legal opinion concludes that Transport Secretary Grant Shapps “has legal power to give overall direction of how the dispute is handled” and that “reinforcing each of these powers are strong financial rewards and sanctions”.

Misleading parliament and the public

The legal advice conflicts with the public claims of the government, including statements to parliament.

On 15 June, Mr Shapps told Parliament: “These negotiations are a matter between the employer and the union. The employer is meeting the union every single day, and that is the best way to get this resolved.”

On Wednesday 22 June, when the Prime Minister Boris Johnson was challenged in PMQs on why he is not speaking to rail unions he said: “It is up to the railways companies to negotiate, and that is their job.”

The TUC says that the legal opinion helps explain the experiences of RMT officials in negotiations. The union’s leaders say that progress has not been possible because the government has been controlling negotiations in the background and blocking rail operators’ ability to conduct genuine negotiations and reach agreements with their employees.

The Transport Secretary has also used media appearances to create the impression that the government has no role in the dispute, or negotiations.

On Tuesday 21 June – the day of the first strike – when asked about whether he would meet with rail unions during an interview with BBC1 Breakfast he said: “I don’t meet with them because that’s the job of employers. And the employers do meet with them, and this is an excuse – a stunt actually – from the trade unions, somehow saying if we could only meet face-to-face it would make all the difference.”

And on Wednesday 22 June, Mr Shapps told Piers Morgan on TalkTV: “This is a negotiation over terms and conditions and pay, which is between the union and the employer. It is the only place that that discussion can take place… You’ve got to have the right people in the room to settle these things. I can’t settle this dispute.”

The TUC notes that the Welsh government has met directly with rail unions under a social partnership model to reach agreements through discussions with government, unions and rail operators all present.

The union body argues that the Westminster government has chosen not to meet with rail unions, has chosen to obscure its controlling role in the dispute, and has chosen to mislead the public over its role directing train operating companies in negotiations behind the scenes.

The Transport Secretary’s financial control over rail operators in the current dispute

The legal opinion by Michael Ford QC suggests that the Transport Secretary is able to control the action of rail operators during disputes and negotiations though a combination of financial carrots and sticks to ensure compliance with his directions.

Analysis by RMT suggests that the rail operating firms are likely to receive payments totalling £65 million from government to protect their profits during the three days of industrial action taken by RMT members. The union says that these payments will further bind the rail firms to the directions given by the Transport Secretary Grant Shapps in the handling of negotiations.

TUC General Secretary Frances O’Grady said:

“The Prime Minister and his Transport Minister have misled the public.

“When they said the government has no role in handling this dispute, that’s not true. When they said negotiations are just for the employers and the unions, that’s not right. We always believed that Conservative ministers had the power to pull the train companies’ strings, behind the scenes. And this legal opinion on rail contracts confirms it.

“The Transport Secretary could unlock this dispute. Instead, he has toured TV studios throwing fuel on the fire and trying to turn working people against each other.

“Britain deserves better. We deserve honesty from our government. We deserve fair negotiation so we can make fair agreements.

“This week, Britain needs its Conservative government to stop stirring and to start helping to solve this dispute. Rail workers, who the Transport minister once described as pandemic heroes, deserve job security and the decent pay rise that they have earned.”

RMT General Secretary Mick Lynch said:

“We’ve always known the government have extensive powers in these negotiations and this legal opinion confirms that. Grant Shapps needs to stop shackling the rail companies and allow RMT to make a deal, like we have dozens of times since privatisation. The transport secretary is not allowing a written guarantee of no compulsory redundancies to be given and this must change. We will continue negotiations next week to win a cost of living pay rise and job security for our members.”

Editors note

- Legal opinion by Michael Ford QC:

The legal opinion published today was commissioned by the TUC and is the independent legal opinion of Michael Ford QC, Old Square Chambers.

Mr Ford became a QC in 2013 and was awarded Employment Silk of the Year at the Chambers Bar Awards in 2015.

The full legal opinion can be downloaded at the bottom of this page.

The legal opinion is based on Mr Ford’s reading of the following contracts:

- Relevance of legal opinion to rail operators in the current dispute: The current rail dispute involves the following train operating companies (TOCs): Chiltern Railways, Cross Country Trains, Greater Anglia, LNER, East Midlands Railway, c2c, Great Western Railway, Northern Trains, South Eastern Railway, South Western Railway, GTR (including Gatwick Express), Transpennine Express, Avanti West Coast, and West Midlands Train.

Three TOCs are in public ownership and directly under the Secretary of State’s direction.

Eight TOCs are under private control and have National Rail Contracts or Emergency Recovery Measures Agreements with the wording assessed in the legal opinion.

And three TOCs are on National Rail Contracts, but their contracts are not yet published on the DfT’s register. The TUC believes that these are likely to have identical wording to those that have already been published.

- RMT analysis of payments expected to rail firms: The estimate of £65 million in payments from government to rail firms to protect profits during the three days of industrial action last week was calculated using outturn data for revenues in 2018/19, fare increases in 2020, 2021 and 2022, average rail use in the last week of full services, and daily revenue losses based on 80% service cancellation during the industrial action and related disruption on non-strike days.

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