Collaborative Rulemaking: A Missing Piece in UK Rail Reform
The creation of Great British Railways (GBR) under the Labour Government’s 2024 reform agenda represents the most significant restructuring of the rail sector in a generation. The ambition is clear: a more integrated, accountable system that delivers for passengers, supports freight growth, and aligns with the government’s connectivity and net zero commitments.
But as GBR takes shape, a critical question remains: how will the new framework promote the interests of freight in a system dominated by passenger priorities?
Charles Tarvin and Josh Flax consider how a UK version of negotiated rulemaking can help build a system which works for all participants in the new system.
Why Freight Matters
Freight operators are not peripheral players. Rail freight underpins supply chain resilience, supports regional economies, and is central to the UK’s decarbonisation strategy. Every tonne of goods moved by rail reduces road congestion and emissions, helping deliver on the Government’s climate commitments.
Yet this sector faces structural disadvantages:
Transparency gaps in decision-making;
Resource asymmetry, where smaller operators struggle to navigate complex processes;
Potential bias towards passenger services in capacity allocation;
Lengthy appeals, which can deter investment and innovation; and
Inefficient use of the network infrastructure, including stations and land holdings.
The Government has pledged to create a fair, efficient system. But fairness cannot be an afterthought – it must be embedded in the regulatory design from the outset.
The Limits of the Current Approach
The Office of Rail and Road (ORR) will act as an appeals body to ensure fairness and non-discrimination. While this offers some reassurance, it is reactive by nature. Appeals processes, however well-intentioned, are slow and adversarial. They do not prevent disputes; they resolve them after the fact – often at significant cost to operators and the public interest.
What’s missing is a proactive mechanism to build consensus before rules are set.
Negotiated Rulemaking: A Proven Alternative
Enter negotiated rulemaking – a process that has transformed regulatory development in the United States since the 1980s. Instead of regulators drafting rules in isolation and then facing years of litigation, negotiated rulemaking brings all stakeholders to the table from the start.
The US Federal Rail Administration used this approach in 2014 to develop a new intercity rail funding formula. Over ten months, representatives from Amtrak, state railroads, industry associations, and advocacy groups worked with federal mediators to co-create the framework. The result? A widely accepted rule, implemented swiftly, with minimal legal challenge – and even the creation of a new cooperative body to oversee delivery.
The benefits are clear:
Legitimacy: Rules co-created by stakeholders carry greater trust;
Efficiency: Reduced litigation and faster implementation; and
Innovation: Diverse perspectives generate better solutions.
A British Model for Collaborative Rulemaking
Britain need not copy the American model wholesale. But the principle – collaboration over confrontation – is highly relevant.
A UK approach could involve:
Convening stakeholder panels representing passenger operators, freight, open access, devolved authorities, and consumer groups;
Facilitated negotiation, drawing on models like ACAS for industrial mediation; and
Iterative public consultation, ensuring transparency and accountability.
These are processes and conversations that all parties need to be involved with and consent to; having said which, the participative nature of them does not need to wait on Government to initiate. With Government heavily focused on the creation of a system which caters for passengers, the Freight Operating Companies could themselves take the initiative to design a process which ensures that the their needs are appropriately reflected under the new arrangements.
The Opportunity Ahead
At Negotient, we believe that inclusive processes deliver better outcomes.
Failing to adopt a collaborative approach risks repeating past mistakes: protracted disputes, delayed investment, and erosion of trust. In a sector as complex and strategically important as rail, that is a risk Britain cannot afford.
On the other hand, by embedding collaboration into the regulatory process, GBR can avoid the pitfalls of top-down rulemaking and deliver a system that works for all.
Negotiated rulemaking offers a proven path to a fair, efficient, and future-ready rail system. Bringing stakeholders into the room early can deliver a regulatory framework that commands confidence, accelerates delivery, and supports the government’s economic and environmental ambitions. The goal is an effective and open source planning, operations and regulatory system that has been shaped and owned by the relevant parties.