Thread by @garius

Okay people. Repeat after me:

STRIPPING GTR OF ITS FRANCHISE IS NOT A VIABLE THREAT.

Why? Because the DfT tried to be clever back in 2017 and shot themselves in the foot. 🤦‍♂️🤦‍♂️

Read on... #rail #london #thameslinkfail /1

https://twitter.com/Peston/status/1014473058927640576

So. Important thing to remember: The GTR Franchise ISN'T just Thameslink. It's Southern (and bits) as well, all coming together in what was meant to be a super-franchise. /2

Now - if y'all remember - that Southern (and to a lesser extent Thameslink) parts of the network were ALSO a massive clusterf*ck shortly after GTR took over - because of the issue of Driver Only Operation. /3

You can argue about the merits of DOO onto that part of the network (we wrote about it a lot on @lonrec at the time:

https://twitter.com/Peston/status/1014473058927640576

) but what was pretty obvious was that DfT wanted it there. And they were going to use the new franchise to enforce that change /4

Now in part they did that by writing the franchise specification in a way that meant GTR sort of had no choice but to push that out. But both they, and GTR, also knew that would make things a bit... well... strikey. /5

Now reading between the lines, it's pretty clear that - officially or not - DfT knew that if they wanted to use GTR as a blunt instrument on DOO, they were going to have to be VERY NICE to GTR in return. /6

So while lots of politicians were grandstanding back then about revoking the franchise (deja-vu!), behind the scenes DfT were doing everything possible NOT to enforce the full penalty clauses on performance, so as to scratch GTR's back. /7

This isn't just my opinion. The performance (and DfT's reaction) was so bad that it triggered a bunch of parliamentary investigations (again, Deja vu! yay!) /8

Indeed one of those resulted in one of my favourite committee reports of recent years:

"The House of Commons Committee of Public Accounts report on Rail franchising in the UK"

(Yes I have favourite committee reports. You mean you don't?! WHAT IS WRONG WITH YOU PEOPLE? 🤓) /9

It was published in April 2018, and if you want an absolute snapshot of just how much the DfT has forgotten about how to scope and run railways then look no further. You can find it here, but don't worry - I'm gonna pick out the pertinent bits below publications.parliament.uk/pa/cm201719/cm… /10

Ya see, one of the things it covers is how the DfT approached penalising GTR for the performance issues after the driver debacle. Or, more specifically, how they didn't. /11

This is because the GTR franchise penalty clauses included the standard definition of strikes as a 'force majeure' event - i.e. one GTR COULDN'T be penalised for. Wanna guess what happened next? /12

Yes you got it. GTR started booking pretty much ANY DISRUPTION they could loosely connect to strikes as being 'force majeure'. which, well fair play. It's their right to try. Luckily, the taxpayer is protected because the DfT get to decide whether they're bullshitting and... /13

...oh. Shit. /14

"WHY WOULD THEY DO THAT?" you shout.

Welll, because they pretty much knew GTR had them by the cylinder pistons because of the whole strike-busting thing. Which also meant they couldn't cancel the contract despite lots of statements saying they were considering it (deja vu!) /15

Don't worry though! The DfT told the Committee, they had a cunning plan to prevent this happening again. Cunning like a fox who has been to cunning school and then cunning university:

They'd done a deal with GTR. GTR would pay UP FRONT for ALL future disruption thru 2018 /16

Of course the committee are all "you what? you've let them PRE-PAY just £5m for delays you don't know about yet?! WHY WOULD YOU DO THAT YOU MAD PEOPLE.

DfT: "Meh. Couldn't be arsed to manage them, bro. It'll probably be fine." /17

Which (finally) brings us to the key thing here: unbelievably, the lowballed, pre-pay part of that deal ISN'T THE WORST THING about it. It's that in making that deal, the DfT pretty much demonstrated that the penalty regime in the franchise wasn't fit for purpose /18

Which has left a MASSIVE contractual elephant in the room - which the committee instantly spotted and no doubt GTR's legal department have too - if they weren't prepared to enforce it before, then they can't really enforce it at all: /19

So when you hear Theresa May or Chris Grayling throwing shade about how they're going to slap down GTR remember 2 things:

- GTR have ALREADY PAID for this disruption
- In asking them to do so, the DfT have (probably) fucked up their ability to enforce the contract penalties /20

So either May or Grayling have somehow managed to hide under a rock and avoid learning that, or they're utterly bullshitting passengers, the press and MPs in the hope everything will blow over and y'all go away.

I know which my money is on. /21

Even if they - or the DfT's lawyers - think they can revoke the franchise, then that recent Nick Brown email shows that GTR's lawyers sure as hell think they can't. Not without a bloody fight for compensation.

And sorry, but I know which group of lawyers I'd rather trust /21

As usual, you can find our detailed coverage of this whole debacle on our website. Key bits here:

londonreconnections.com/2018/holy-grai…
londonreconnections.com/2018/the-cicad…

If you like what we do (we're volunteers!) you can help us pay the bills on Patreon here:

patreon.com/lonrec/ /end

ADDENDUM: By request, here's a breakdown of Grayling's weird (and hard to justify) comment about revoking the franchise based on 'incompetence'

https://twitter.com/garius/status/1014793954766852096

SECOND ADDENDUM: As usual, @LilianGreenwood attempted to hold their feet to the fire at Transport Quesitons this morning.

You can see her ask about THIS VERY ISSUE here: parliamentlive.tv/Event/Index/c0…

The non-answer reply by @JoJohnsonUK probably tells us MORE than an actual answer would have done:

Because if it WASN'T an issue, then it would have been in both his and Grayling's interest to say so,

The fact that he couldn't tells us that AT THE VERY LEAST this has added unnecessary complexity to the process, which then in turn raises the bar before it becomes worthwhile (to the DfT) to try and withdraw the franchise.