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Should Gov be sued over PRM failure?

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Xenophon PCDGS

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Let's all sue the Government (ourselves) for the failure of train manufacturers to make things that actually work?

Is anyone out there with EC legal knowledge that can clarify the exact legal position of the British government in respect of the supply of train units sourced in a different EC country by a ROSCO et al, where there had been no British governmental finance or any other matter at the time of purchase?
 
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modernrail

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I'm sure they'd be very worried about being sued. Fighting the case with our money. Paying any fines with our money.

Accountability comes via democracy (ie politicians getting sacked) not the courts.
Thats a big stat
Is anyone out there with EC legal knowledge that can clarify the exact legal position of the British government in respect of the supply of train units sourced in a different EC country by a ROSCO et al, where there had been no British governmental finance or any other matter at the time of purchase?
The ROSCO is a bit of a red herring as the TOC is the party that 'activates' the asset by operating it. It is therefore the TOC that bears the legal responsibility for what it runs on the rails.

However, it only runs on anything on the rails because of the contractual arrangements it has with the DfT, unless it is an open access operator in which case it operates via an access licence.

So, disabled groups could potentially sue the Government as contractual masters of TOCs but they could not sue the Government as contractual masters of open access operators because they are not.

They could potentially sue the Government in respect of both types of arrangement for granting a dispensation.

Some people seemed to be concerned that suing is just an expensive money grabbing exercise. That is ambulance chasing. To sue is to:
'institute legal proceedings against (a person or institution), typically for redress.'

The ability to do this is pretty fundamental to our whole British constitution. The ability for any person to petition the king for redress (now achieved through the courts, hence terms such as 'Queen's Bench') is one of the things that marked us out as something other than a tyranical absolute monarchy. The idea that your only democratic and constitutional redress to the actions or inaction of a Government might be to try and draw that specific point out as a defining argument within an election that might be years away is completely and utterly laughable and would mean the dismantling of a constututional legal structure that remains the envy of much of the world and the inspiration for many other such systems.
 

mpthomson

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Sometimes legal action of this type is important on the principle. We have a tradition in the UK that if you pass a law you stick to it, especially if you are the Government. The Government is also the correct enforcer of franchise committments which includes compliance with legislation. We have heard nothing about any penalty clauses for non-compliance and so disability rights groups might have a point in saying the Government paid only lip service to enforcing its own legislation through its own franchise agreements. The law is the law of the land passed by a democratic Parliament and is to be complied with. The Government has clearly dropped the ball in a few places on this one.

I am personally on the fence, but wouldn't blame disability rights groups for having a pop. It would likely be more of a 'raise your game' remedy in any case and that is a message that might be worth sending particularly as we are likely to see record levels of spin with the latest bunch - the PM is after all a journalist by trade

The law doesn’t work on ‘principles’, it works on the law. Suing the government would be a heinous waste of all parties involved’s funds and achieve nothing!
 

Meerkat

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Just to be clear...are some people here expecting that there should have been plans to have all stock modified or replaced by the deadline AND all other stock modified just in case? Tens of millions wasted on trains that would have been scrapped before the deadline if plans had worked, and hundreds of coaches taken away from providing public service during modification?
 

modernrail

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The law doesn’t work on ‘principles’, it works on the law. Suing the government would be a heinous waste of all parties involved’s funds and achieve nothing!
The law works on legal principles, key to which is legal certainty. Governments propose but do not pass legislation. Legislation is passed by a series of votes within our democraticly elected Parliament. Once it has passed and received Royal Assent (the latter is a formality) affected parties have a reasonable and legitimate expectation that it will be implemented (another legal principle). If that it not done and the Government acts arbitrarily (so without further vote) by dispensation to water down a democratically approved piece of legislation an affected party may claim they have suffered harm, either as a group (people with reduced mobility) or as individuals (I have reduced mobility and bought a house near a train station with reasonable expectation of the law being implemented so I can get to work). Legitimate expectation and the concept of harm and being able to hold the Government to account where it steps outside the tramlines through the courts are legal principles.
 

Bletchleyite

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I agree that there really must be a 'hard edge' with these new rules. Compliance otherwise will never be achieved.

I'd rather the "hard edge" was against failing TOCs (e.g. franchise withdrawal or serious financial consequences) rather than against passengers (as withdrawing stock with no replacements would be).
 

Bevan Price

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I will probably make myself unpopular with some people, but I do not subscribe to the view that the majority should suffer just because a minority have problems. Sadly, some people are less able than others; yes we should try and help them where that is reasonably practicable. But there is a limit to what we can reasonably be expected to do. Cancelling trains that were not fully accessible would inconvenience many thousands.

We have already lost thousands of public toilets, partly because councils closed them because they could not easily - or affordably - be converted to wheelchair-accessible. There were even some moaners who thought that "heritage Routemaster bus" services should not be allowed because Routemasters were not accessible to wheelchairs.

I am less able than many other people in some activities - but I don't whinge to suggest that just because I cannot do some things, nobody else should be allowed to do those activities.
 

Bletchleyite

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I will probably make myself unpopular with some people, but I do not subscribe to the view that the majority should suffer just because a minority have problems. Sadly, some people are less able than others; yes we should try and help them where that is reasonably practicable. But there is a limit to what we can reasonably be expected to do. Cancelling trains that were not fully accessible would inconvenience many thousands.

I quite agree, hence my view that this shouldn't be a "dead stop" on the stock, but instead a "dead stop" on the TOC's franchise for failing to deliver.

We have already lost thousands of public toilets, partly because councils closed them because they could not easily - or affordably - be converted to wheelchair-accessible

That I think was an excuse - they wanted to close them to save money. However, that discriminates against those who have frequent need of a toilet because it makes places inaccessible to them (why is that not seen as a disability on a par with wheelchair use, as the effect can be the same?). Provision of public toilets should have remained a statutory duty.
 

ainsworth74

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I quite agree, hence my view that this shouldn't be a "dead stop" on the stock, but instead a "dead stop" on the TOC's franchise for failing to deliver.

How were EMR supposed to deliver a fully compliant fleet between August and December 2019? Seems harsh to strip them of their franchise no?
 

Llanigraham

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I quite agree, hence my view that this shouldn't be a "dead stop" on the stock, but instead a "dead stop" on the TOC's franchise for failing to deliver.
So you would be happy that no or very few trains would run?

That I think was an excuse - they wanted to close them to save money. However, that discriminates against those who have frequent need of a toilet because it makes places inaccessible to them (why is that not seen as a disability on a par with wheelchair use, as the effect can be the same?). Provision of public toilets should have remained a statutory duty.
And would you have been willing to pay the large increase in your Council rates to pay for this?
 

HSTEd

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It is the farepayers problem if trains go out of service and there aren’t enough trains left to meet the timetable, which seems to be the reality of the situation.

The current news is pretty shambolic, but a dispensation is the only way out of the mess.
A dispensation was the only way out of this mess without making the ROSCOs look very bad indeed.
So the Government, desperate to avoid the ROSCOs looking bad at a time when railway privatisation is less and less popular with the public, was always going to try and quietly grant a dispensation.

The ROSCOs knew all this so knew there was no real reason to make anything but token refurbishment plans.

Just to be clear...are some people here expecting that there should have been plans to have all stock modified or replaced by the deadline AND all other stock modified just in case? Tens of millions wasted on trains that would have been scrapped before the deadline if plans had worked, and hundreds of coaches taken away from providing public service during modification?
I think the Government should have stated outright that no dispensations would be granted.
What the ROSCOs do after that is no concern of mine.
 

Brissle Girl

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I think there's plenty of blame to go around here (but I don't think any of it actually gives rise to legal action). Ironically I actually think that in many respects that the TOCs are relatively blameless in this mess.....
I think this is the most accurate summary of the whole situation I've read in a long time.
 

Brissle Girl

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A dispensation was the only way out of this mess without making the ROSCOs look very bad indeed.
So the Government, desperate to avoid the ROSCOs looking bad at a time when railway privatisation is less and less popular with the public, was always going to try and quietly grant a dispensation.

The ROSCOs knew all this so knew there was no real reason to make anything but token refurbishment plans.


I think the Government should have stated outright that no dispensations would be granted.
What the ROSCOs do after that is no concern of mine.
It would be if trains were cancelled because they were not adapted. What ROSCO was going to spent thousands on Pacer amendments when the expectation was that all the stock was going to be withdrawn before the deadline. They would just say, fine, we didn't expect you to use (or pay us) for the trains after 12/19 so it's no concern to us what happens after that date.
 

ainsworth74

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The ROSCOs knew all this so knew there was no real reason to make anything but token refurbishment plans.
I'm sorry but what on earth are you talking about? I must be imagining the vast numbers of 15xs that are floating about that have been modified, sometimes quite substantially, to be compliant. Or the 144e which was modified to show off what could be done to a Pacer to make it compliant. Or the various Mk3s (with long term homes) that have effectively had their ends rebuilt to make them compliant. And so on and so on.

Our definition of "token" must be quite different!

A very good post, covers the things I think but much better worded than I can do

I think this is the most accurate summary of the whole situation I've read in a long time.

Thank you both :)
 

AM9

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How were EMR supposed to deliver a fully compliant fleet between August and December 2019? Seems harsh to strip them of their franchise no?
They weren't for such a late franchise start. In view of that, EMR should have made the proviso that compliant rolling stock would be available as a part of their tender, (and so should have any other competing bidder). If the DfT then awarded a franchise against such a tender, they would be taking responsibility for suitable rolling stock being available, or acknowledging that they would themselves apply for a derogation for that specific franchise.
It would then be for the DfT to obtain that derogation from the Disability Advisory Committee. If a passenger, who would have made a contract with a TOC, were to sue for inadequate provision for PRM travellers, in either case (1 or 2 above) the TOC would refer the passenger to the DfT.
 

Brissle Girl

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They weren't for such a late franchise start. In view of that, EMR should have made the proviso that compliant rolling stock would be available as a part of their tender, (and so should have any other competing bidder). If the DfT then awarded a franchise against such a tender, they would be taking responsibility for suitable rolling stock being available, or acknowledging that they would themselves apply for a derogation for that specific franchise.
It would then be for the DfT to obtain that derogation from the Disability Advisory Committee. If a passenger, who would have made a contract with a TOC, were to sue for inadequate provision for PRM travellers, in either case (1 or 2 above) the TOC would refer the passenger to the DfT.
I am sure the subject of compliant rolling stock was very well documented in terms of the tender document and subsequent bids and negotiations, in terms of how the process was going to be managed to move to a compliant situation.
 

AM9

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I am sure the subject of compliant rolling stock was very well documented in terms of the tender document and subsequent bids and negotiations, in terms of how the process was going to be managed to move to a compliant situation.
But the EMR case, as ainsworth74 asked, involved an unrealistic time to provide the PRM compliant trains, - even from the bid award date, so DfT were clearly not competant in assessing the tenders, and even more incompetant in their actual selection. In other words, what sort of timetable from EMR did they approve?
 

Brissle Girl

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But the EMR case, as ainsworth74 asked, involved an unrealistic time to provide the PRM compliant trains, - even from the bid award date, so DfT were clearly not competant in assessing the tenders, and even more incompetant in their actual selection. In other words, what sort of timetable from EMR did they approve?
Do we know that DfT had an expectation that they would provide compliant trains? Either in the tender document or that they chose a winner based on compliant stock being available.
 

Deepgreen

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I imagine this all has become moot now that Johnson is in again. The opportunity to re-nationalise was offered and rejected, partly because it and everything else was over-shadowed by a trade deal. The railways will presumably receive little attention in the next five years and will be allowed to continue their spiralling under the umbrella of what will be spun as the 'people's choice' - i.e. the status quo. TOCs know that they are very unlikely to be stripped of their empires, and there are fewer and fewer organisations that want to/can bid anyway - the number of European operators in the UK means that home-grown competitive bidders are effectively dead, so we have a Government that wants so-called 'competition' but from a position outside the EU, where the competition came from!
Legal threats don't worry those at the top, as has been proven recently.
 

Bevan Price

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So you would be happy that no or very few trains would run?
That I think was an excuse - they wanted to close them to save money. However, that discriminates against those who have frequent need of a toilet because it makes places inaccessible to them (why is that not seen as a disability on a par with wheelchair use, as the effect can be the same?). Provision of public toilets should have remained a statutory duty.

And would you have been willing to pay the large increase in your Council rates to pay for this?

I think that many of us might prefer that local councils had not been starved of funds by the government, such that they had to close many things - toilets, libraries, etc., and were barely able to provide adequate social services.. Council tax is essentially unfair in that the amount is unrelated to current income and ability to pay; the government claimed to favour tax reductions, but adopted policies that induced councils to apply the maximum allowable increases in council taxes.
 

3141

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It seems to me that only a minority of posts in this thread have stayed in touch with reality. There were expectations that a lot of new rolling stock would be in service by January 2020, making it unnecessary to do work to make compliant the trains that were going to be withdrawn. In practice many of the new trains aren't in service, so dispensations are required and are taking place, since no-one in their right mind would propose withdrawing non-compliant stock and causing serious problems for all types of passengers. In the case of EMR there obviously didn't exist large numbers of compliant trains ready to be brought in to replace the EMT ones that weren't compliant, so there's no way that EMR could have been expected to be 100% compliant by January, or that the DfT should have required the winning bidder to be. Remember the fuss on these forums when EMT were proposing to use ex-Hull Trains class 180s? That's nothing to what would have been said if their no. 1 objective had been to ensure that they didn't run any trains that weren't PRM compliant.

It's so fashionable to look round for someone to blame for everything, especially if the candidates include standard hate figures like ROSCOs or the DFT. It's also fashionable to imagine that somebody should sue someone else over every problem. Having people who should be running railways diverting their attention to defending court cases and using railway money to do so is not sensible. "Heat not light" certainly applies to this thread.
 

158756

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It seems to me that only a minority of posts in this thread have stayed in touch with reality. There were expectations that a lot of new rolling stock would be in service by January 2020, making it unnecessary to do work to make compliant the trains that were going to be withdrawn. In practice many of the new trains aren't in service, so dispensations are required and are taking place, since no-one in their right mind would propose withdrawing non-compliant stock and causing serious problems for all types of passengers. In the case of EMR there obviously didn't exist large numbers of compliant trains ready to be brought in to replace the EMT ones that weren't compliant, so there's no way that EMR could have been expected to be 100% compliant by January, or that the DfT should have required the winning bidder to be. Remember the fuss on these forums when EMT were proposing to use ex-Hull Trains class 180s? That's nothing to what would have been said if their no. 1 objective had been to ensure that they didn't run any trains that weren't PRM compliant.

It's so fashionable to look round for someone to blame for everything, especially if the candidates include standard hate figures like ROSCOs or the DFT. It's also fashionable to imagine that somebody should sue someone else over every problem. Having people who should be running railways diverting their attention to defending court cases and using railway money to do so is not sensible. "Heat not light" certainly applies to this thread.

Very clearly, someone, or probably many people, are to blame for the current situation. There has been no lack of warning about the deadline, but the industry decided to do nothing until almost the very last minute and now acts surprised when they haven't come close to meeting it.

No one will benefit from withdrawing large numbers of trains without replacement, and we cannot magic up more compliant trains before the end of the month. That doesn't mean there shouldn't be some form of legal action if it is possible though. It is important that the law is respected, that there is an expectation it will be enforced. In this case what is to stop other businesses refusing access to disabled people if a blind eye is turned on the railway? What's to stop the railway continuing to plead that the poor shareholders can't stomach the cost of compliant trains? It doesn't matter if fining the government is meaningless, they've been sued before for acting unlawfully, the point is upholding the law.
 

AM9

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Do we know that DfT had an expectation that they would provide compliant trains? Either in the tender document or that they chose a winner based on compliant stock being available.
We can only guess about the DfT's expectations, (if indeed they had any). The thread is not about whether dispensations should be allowed, which will as a consequence, create cases of the disabled traveller being disadvantaged even longer than the years over which the industry has had to comply with the law. The question posed by the OP was:
"Should the Goverment be sued?"
.​
That implies whether it is the 'government' that should be sued or anybody else involved in the process, and that point has been a significant part of the discussion in the thread. The simple fact is that the period allowed was adequate for the industry to get it's act together, but in true British fashion, much of the time has been spent hedging positions to avoid any blame, rather than getting on with it.
So, should the suffering disabled passenger take action or just roll over and assume that and laws passed for their protection aren't important because they are a minority. That is the fit majority need plenty of room to travel so they should stand aside. That's a recipe for ensuring that such protection never gets taken seriously.
So yes, in order to break this attitude of 'ignore it because it might inconvenience the majority', (which is echoed by a few posts in this thread - most of whom are probably fit), it is necessary to make clear that failing to comply with the law has consequences.
As the UK government is responsible for the law of which, it set the time limit it clearly has a part in this failure.
The same government through the DfT:
specifies services and performance required of bidders
manages the tendering process
assesses bids and chooses which bid is given the franchise
has the power to penalise the franchisees that underperform​
It has failed in one or more of these tasks however, individuals that as passengers have been disadvantaged have only a contractual arrangement with the TOCs. I would expect a representative body, the Disability Advisory Committee as part of the Equality and Human Rights Comission would take action on behalf the disadvantaged which would include any defaulting government agency.
 

Dr Hoo

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What's to stop the railway continuing to plead that the poor shareholders can't stomach the cost of compliant trains? It doesn't matter if fining the government is meaningless, they've been sued before for acting unlawfully, the point is upholding the law.
I wasn’t aware that any party to the current situation had seriously raised a ‘cost’ issue. Over many years since the requirements were established a lot of expensive new trains have been ordered (along with new and altered depots, power supply, platform extensions, training, etc.) and mid-life trains sent for upgrade. The DfT and others have accepted reduced premiums or increased subsidy in many cases as they have effectively been buying a (hopefully) ‘better’ and often more extensive service.
Obviously we all know that many problems with late delivery, teething troubles, skill shortages at works and so on have slowed the rate of introduction of compliant stock.
Can you provide a source for some of these ‘pleas’?
 

Bevan Price

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Just because some things are "the law", it does not mean they are sensible or practicable. Some politicians have a tendency to pander to vociferous lobby movements, thinking it may buy them some votes - but fail to consider the full consequences of changing laws. Good intentions are futile if governments fail to provide enough funding to facilitate any changes that are consequences of their law changes.
As several have pointed out, legal action benefits nobody - except some already wealthy members of the legal profession. And legal actions can drag on and on and on for years, directly (or indirectly) leading to £££,£££,£££ coming from our pockets as taxes (or increased fares, et.) to pay for it all.
 

158756

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Just because some things are "the law", it does not mean they are sensible or practicable. Some politicians have a tendency to pander to vociferous lobby movements, thinking it may buy them some votes - but fail to consider the full consequences of changing laws. Good intentions are futile if governments fail to provide enough funding to facilitate any changes that are consequences of their law changes.
As several have pointed out, legal action benefits nobody - except some already wealthy members of the legal profession. And legal actions can drag on and on and on for years, directly (or indirectly) leading to £££,£££,£££ coming from our pockets as taxes (or increased fares, et.) to pay for it all.

There was nothing about the law in question that was not sensible or practical. We know almost every train operating in the railway can be modified, and the industry has had many, many years notice. The problem arose because until the last few years absolutely nothing was done. That was entirely avoidable, but to do so would have cost money, so nothing happened.

If there is no legal action the same thing will happen again and again. The needs of disabled people are frequently ignored, and those improvements there have been have had to be fought for, often in court. If the result of legal action is that the legal obligations of the rail industry, or regarding accessibility in other sectors, are taken more seriously, clearly the benefits will not be limited to wealthy lawyers.
 

Bayum

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I will probably make myself unpopular with some people, but I do not subscribe to the view that the majority should suffer just because a minority have problems. Sadly, some people are less able than others; yes we should try and help them where that is reasonably practicable. But there is a limit to what we can reasonably be expected to do. Cancelling trains that were not fully accessible would inconvenience many thousands.

We have already lost thousands of public toilets, partly because councils closed them because they could not easily - or affordably - be converted to wheelchair-accessible. There were even some moaners who thought that "heritage Routemaster bus" services should not be allowed because Routemasters were not accessible to wheelchairs.

I am less able than many other people in some activities - but I don't whinge to suggest that just because I cannot do some things, nobody else should be allowed to do those activities.
50% of the population are able to do certain things men cannot... With this comes the issue of being able to adequately access public transport. Ever tried carrying a pushchair onto a train?
How about getting old? 95% of us will live into an elderly age where our balance, strength and endurability all begin to fail. Are you suggesting that we should not make trains accessible to this group of people?

Try as you may, accessibility is not just about those in wheelchairs or those with a disability, it’s about improving access for all.
 

HSTEd

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It would be if trains were cancelled because they were not adapted. What ROSCO was going to spent thousands on Pacer amendments when the expectation was that all the stock was going to be withdrawn before the deadline. They would just say, fine, we didn't expect you to use (or pay us) for the trains after 12/19 so it's no concern to us what happens after that date.

And one of the other ROSCOs would have tendered for new rolling stock in replacement of them.
 

Brissle Girl

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The decisions for new rolling stock to replace Pacers had already been taken, eg the Northern franchise was specifically required to replace them. The only reason that Pacers are staying in place beyond 12/19 is that the replacement stock is not yet completely available. So my point stands. The ROSCOs don't care two hoots whether or not they are used beyond 31/12.

Worth remembering that one ROSCO specifically said it had no intention of making its Pacers PRM compliant a couple of years ago. The other offered an option and converted one as a demonstration vehicle but nobody took up the idea. Once those decisions were made neither ROSCO had any expectation of use or income beyond 12/19.
 

Starmill

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Just because some things are "the law", it does not mean they are sensible or practicable. Some politicians have a tendency to pander to vociferous lobby movements, thinking it may buy them some votes - but fail to consider the full consequences of changing laws. Good intentions are futile if governments fail to provide enough funding to facilitate any changes that are consequences of their law changes.
As several have pointed out, legal action benefits nobody - except some already wealthy members of the legal profession. And legal actions can drag on and on and on for years, directly (or indirectly) leading to £££,£££,£££ coming from our pockets as taxes (or increased fares, et.) to pay for it all.
Exactly what about the current law isn't practical or sensible?

Government and its agencies fail to comply with the law fairly frequently. There are countless recent cases where this has been decided by Judges. Nearly all of these cases lead to quite obviously practical and sensible things that should happen.

Imagine where we would be without Miller and Cherry, when the Prime Minister ignored the law on the prorogation of Parliament.

Just because the government has done something, that does not mean it was lawful, in the same way that because the government says something, that does not mean that it is true.
 
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