The engine room

Sally Barrett-Williams is a woman who must revel in heavy responsibility. Running the legal department of the Office of the Rail Regulator (ORR) with a view to developing it, while finding oneself almost inadvertently creating new law, is no task for the weak-hearted.

However, Barrett-Williams takes it all in her stride, conceding that it is “inevitable that case law must be developed”. And then there is the recent scandal over the running of Railtrack, which at best can be described as an embarrassment and at worst a momentous cock-up.

Unsurprisingly, Barrett-Williams is a little sensitive at the mere mention of Railtrack. “Generally, the debate on the rail industry isn’t always accurately reported,” is all
she will say concerning the public outcry.

The head of legal has been with the ORR for only 10 months, leaving the Office of Gas and Electricity Markets (Ofgem) to take the reins of this now contentious office.

Barrett-Williams is a barrister by training, qualifying in 1985 and taking her pupillage in 17 Old Buildings. There were two more chamber moves – 4-5 Gray’s Inn Square and then Garden Court Chambers (now 39 Essex Street) – where she practised public law. She then took the unusual decision to move to the City, joining Simmons & Simmons as an employed barrister in 1987.

“Although the work at the bar is interesting, one starts at the bottom,” she says. “I was attracted to doing the same scale of work in the City without starting at the bottom.”

After three years in private practice, Barrett-Williams moved to National Power, working in competition law. She ran the UK side of the business for the company, often working on international aspects in China and Turkey.

Her next move was in preparation for the passing of the Competition Act. She joined Ofgem 18 months ago and stayed eight months before joining the ORR.

There seems to be no doubt, though, that her somewhat erratic career path has given her the best possible background. “Any competition lawyer must seriously consider working for a regulator for first-hand experience of applying and making the law,” she says.

She believes that this first-hand involvement is a bonus that is only really provided by in-house work. “Being in-house is to be in a position where one is much more hands-on – developing policy and having contact with people across the board,” she says.

And being in-house for the Government has added dimensions. “The role is very law-intensive,” she says. “Whatever decisions are taken are taken only with reference to statutory provisions. Therefore, you’re very involved in making the regulations. In-house lawyers elsewhere are on the other side, trying to comply with the regulations.”

Last Monday (11 June) the ORR began to go through tenders for its work. Slaughter and May has always been used, as has a professor at King’s College of Law, Richard Whish, who advises on competition issues.

“We’ll be keeping Slaughters and Whish,” Barrett-Williams says. “However, we recognise that law firms are going to have potential conflicts of interest and we may need to use somebody else. Therefore, we want a panel with a few firms in order to avoid a situation where we could end up without external advice.”

Barrett-Williams’ relationship with the external legal help she has inherited is good. “We like to work with individuals and deal with them as if they were part of the team,” she says.

She stresses the importance of the cooperative relationship between in-house lawyers and their external law firms. “We need to know that important knowledge will not go out-house,” she says.

In keeping with this period of proactivism, Barrett-Williams plans to recruit for this exciting environment. She hopes eventually to lead a team of 10, with one trainee, and she wants only the best.

“All our lawyers have to be technically very good, but I’m also looking for different skills for a Government lawyer,” she says. “He or she must have a public mindset and be able to identify relevant issues, even if they can’t at first provide the answers.”

She adds: “Each member of the team must have a particular role to play in the organisation. In this office, lawyers have a significant political role.”

The office is divided into ad-hoc teams and there needs to be enough lawyers for each of them. Barrett-Williams says:”If they [the lawyers] have serious input, there ought to be a more effective outcome.” And this can happen only when there is a full complement of lawyers.

The lawyers themselves are interviewed by a board and come into the organisation at a certain position but are able to transfer to other departments. And while the demands are great, the rewards are high.

“Lawyers who join the Government Legal Services (GLS) have a massive promotion pool – all of the civil service. It’s inevitable, as it’s a small department, to want to bring people in and give them real career development.”

Barrett-Williams expects lawyers to move on after around three years. “We have no desire to push them,” she says, “but they’re attracted to the enhancement of their careers. The GLS is very well networked. As long as a lawyer has the right access to a team, in my view they’ll end up with an exciting job.”

This turnover of staff is perceived as a positive experience for the ORR. “Law changes all the time,” says Barrett-Williams. “There’s always a need to take a fresh look, and you can only get that with a turnover of staff.”

Inevitably, it takes a long time to train each lawyer. Even experienced lawyers can take up to six months to fully comprehend the sector, and before that happens they require supervision. Once trained, however, they become involved in complex law and policy making, says Barrett-Williams. “We expect our lawyers to have something to say to people in organisations,” she says. “There’s a lot of contact with a number of organisations.”

As part of this expansion, a deputy is about to join her from Strathclyde in Scotland. Elaine Harris is head of legal at the Passenger Transport Executive and will begin at the ORR in mid-July.

Back, then, to Railtrack. Can Barrett-Williams be convinced to talk? Well, yes and no.

“When Tom Winsor came into office, he put together a regulatory agenda with the purpose of ensuring that Railtrack delivered what it’s paid to do,” she explains.
As yet, there are no qualms about the fact that the points which were set out have not all been achieved.

“There are a number of licensing conditions in the Railtrack licence that will allow the regulator to know that Railtrack is delivering,” she says. “Some licence conditions have been put in place and some are not quite complete, but soon will be. Enacting a licence condition takes time.”

Indeed, the process seems incredibly complex. First, there is an informal consultation, taking account of representations made when discussing the conditions with Railtrack. There could be changes at this point.

When something is agreed on – “that looks as if it’s the sort of thing that will do what we want and is acceptable to Railtrack” – there is a public consultation process and the whole operation begins again.

These licensing conditions affect many of Railtrack’s access agreements, through which it makes most of its money, and the team is also in the process of a major review of the clauses within these agreements.
For now, Barrett-Williams has not been disheartened by these complex and controversial events.

“For any competition lawyer to be in regulation with the capability to develop the law is very exciting. It’s also intensely satisfying to be putting together a whole new thing,” she says.

“Not only that, it also makes a difference to the way things go externally – this obviously comes with a high amount of responsibility.”

Wherever the future of Railtrack lies, there is no doubt that Barrett-Williams will be the driving force behind any legal innovations that support it.
Sally Barrett-Williams
Head of legal
Office of the Rail Regulator

Statistics
Organisation Office of the Rail Regulator
Sector Government Legal Services
Employees 105
Legal capability Six (Three paralegals and three lawyers)
Head of legal Sally Barrett-Williams
Reporting to Rail regulator Tom Winsor
Main location for lawyers London
Main law firms Slaughter and May and Richard Whish, professor of law at King’s College of Law, London, advises on competition issues