Examination of Witnesses (Questions 14820
- 14839)
14820. Mr George: What does the Bill
do in this respect?
(Mr Smith) I am afraid the
powers in the Bill in relation to access contracts, for all the
types I mentioned, networks, track access facilities, connections,
are particularly draconian. Exiting contracts will be cancelled
if they are considered to prejudice the operation of Crossrail,
that is clause 26, new access contracts will be modified or refused,
that is clause 30, new facility contracts to allow Crossrail to
use facilities can be forced on facility owners, that is clause
31, and the whole scope of clauses 22 to 32 effectively make all
trains and facilities on the shared lines used by Crossrail subservient
to Crossrail and at risk of being extinguished by Crossrail.
14821. Mr George: We should not forget,
should we, clause 24(1) which provides that the Office of Rail
Regulation shall have an overriding duty to exercise its functions
in such a manner as not to impede the performance of any development
agreement and the over-riding duty.
(Mr Smith) The Office of
Rail Regulation has a number of duties under section 4 of the
1993 Act as amended to allow users to plan with a reasonable degree
of assurance, to have regard for the needs of operators of the
network and to have regard for Network Rail. It seems to balance
those duties, but unfortunately the duty which is now proposed
on to 24(1) pushes all those other duties aside and makes Crossrail
the over-riding duty and the others have no power whatsoever.
14822. Mr George: Can we go to EWS22.[45]
It is a very recently enacted piece of legislation of the London
Olympic Games and Paralympics Games Act 2006. Can you blow up
section 17 of that which is at the top. You are referring to this
because Mr Elvin last Tuesday prayed that provision in aid?
(Mr Smith) That is correct. Mr
Elvin seemed to say that this was very similar to the powers within
the Crossrail Bill and would have the same effect. We do rather
see it differently. We like what is here in 17, it is something
which was agreed by the rail industry at the time that the Olympics
Bill was being discussed with the industry. It adds a duty to
the regulator's existing duties and he has to have regard for
the needs of the Olympics and the Olympic Delivery Authority.
That is perfectly understandable to make the Olympics happen.
14823. Mr George: Can we have on the
screen the very next page of that exhibit, please, which is an
extract from the Railways Act 1993, section 4, the general duties
of the Secretary of State.[46]
Those are the general duties of the Office of Rail Regulation.
What the Olympics Act has done is to add to them an additional
objective mainly facilitating the provision of the London Olympics.
Is that right?
(Mr Smith) That is correct.
14824. Mr George: That you regard as
wholly acceptable?
(Mr Smith) It is. It is
a duty that the ORR has taken into account but has to be balanced
with all the ORR's other duties.
14825. Mr George: What do you suggest
should be done to the railway clauses in respect of those provisions?
(Mr Smith) Mr Elvin last
week seemed to suggest that the previous clause that we saw in
the Olympics Act and clause 22 of the Bill had much the same effect.
If that is the case, then we would ask that a clause similar to
clause 17 of the Olympics Act is put in place, Crossrail clause
as it were, which becomes a duty on the regulator to have regard
for Crossrail but does not override all the other duties, it sits
alongside them. That would be perfectly acceptable.
14826. Mr George: What is your objection
to the priority which is given to Crossrail by the existing wording
of clause 24 and indeed also clause 22?
(Mr Smith) It gives no certainty
to EWS or any other rail freight user or rail users who could
lose their private access rights at any moment through the operation
of clause 24 and other clauses within the railway powers part
of Bill.
14827. Mr George: What is the effect
going to be on freight operators?
(Mr Smith) It is simple,
we lose customers and business because we cannot provide the certainty
to our customers that we can use the network. If you are using
a road haulier the motorway is always open for business, it may
be congested but it is open for business, what happens here is
someone can step in and say, "You, EWS, may not use the railway
network in these circumstances or at these time or locations".
It destabilised the network and our operation and quite frankly
what might otherwise have been a level playing field becomes about
as unlevel as the Acton dive under. It is not acceptable that
such powers can be in place to upset and disturb the stability
and certainty that we seek to protect. In their response document
the EWS Petition, Crossrail have drawn attention to the Channel
Tunnel Rail Link and say that is a precedent for a clause like
clause 24 of the Bill. What do you say to that?
(Mr Smith): Two very different
schemes. Channel Tunnel Rail Link was built primarily on a greenfield
site with very little interaction with the existing network and
the existing services, and essentially has been built without
affecting them, except in very small ways at either end. In contrast
Crossrail affects so many operators, so many services and it is
a very different prospect and very different project. There are
some European law issues associated with this. I just make the
point that the CTRL Act was of course enacted before the directives
were introduced into UK law but we will come to that later. CTRL
and Crossrail are two very different beasts.
14828. Now to the Access Option which we are
told may be, as it were, the panacea for the matter What do you
say about the proposed Access Option solution?
(Mr Smith): The Access Option
has been welcomed by a number of people as an alternative to the
railway powers. We have a number of concerns about the Access
Option, and we have lodged those in detail with the Promoters
on two occasions; but we do not as yet have a formal response
to those concerns.
14829. Could we just put up EWS23.[47]
This is a summary, is it not, of matters which were contained
in your letter of 30 March to the DfT to which you are still awaiting
an answer?
(Mr Smith): That is correct.
14830. Rather than read out the entirety of
that exhibit, can you just summarise your concerns?
(Mr Smith): The Access Option
in practice will have exactly the same effect as the railway powers
existing currently in the Bill. They may be by agreement with
the industry, but of course unless the industry agrees then the
railway powers will be exercised. The Access Option provides for
a very long term, far in excess of that which is normally expected
with access contracts as I commented earlier on. It assumes that
a certain amount of infrastructure is provided but we have no
commitment that that will happen. Further, the Access Option brings
in additional services on both the Great Western and the Great
Eastern which will consume capacity; and it presumes a timetable
which is merely illustrative in nature to demonstrate that the
Option works. This morning Network Rail referred to the fact that
there is a big difference between the Access Option policy and
the Option itself which provides detailed timetabling. As I said
before, until we understand that the timetabling works, then any
commitment even by the Promoter that relates to that timetabling
has limited value. In addition, although the ORR has a greater
role with the Access Option, again it is quite clear that unless
the Access Option that is agreed provides Crossrail with the certainty
of services that it needs, then we are no further forward. It
is still not clear in the Access Option what the maintenance regime
will be for the network As I mentioned before, two or four lines
can be blocked and it is not yet clear exactly how the timetable
will work in those circumstances, particularly important given
the number of freight trains operating at night. Also the Access
Option has yet to deal with issues relating to perturbation and
performance. The Access Option may be a step forward from the
railway powers, but essentially it still has the same effect.
14831. Finally on this topic, what it is you
are seeking from the Committee? Could we please go to exhibit
EWS24.[48]
In the lefthand margin there is the clause of the Bill, and then
there is a summary of its present effect, and then in the righthand
column is there your requested amendments?
(Mr Smith): That is correct.
14832. Although you have not done the drafting
you have indicated the sort of matters you are seeking, and you
are suggesting that the Committee require the Promoters to bring
forward amendments along these lines?
(Mr Smith): That is correct.
Only with those amendments will our private access rights have
some degree of certainty, and we will have some degree of confidence
that they can be operated.
14833. I think we can just highlight three matters.
First of all—so far as clauses 25 and 26 are concerned,
which are dealing with what I may term as "pre-Act"
existing rail network access contracts—you are accepting
that there is a need for a provision to deal with it; and you
are content with what is provided as long as there is a compensation
provision?
(Mr Smith): That is correct.
14834. Secondly, so far as clauses 22 and 24
are concerned, you are suggesting that one uses the Olympic Bill
formula, that is adding to the objectives of the rail regulator
rather than the formula which is used at the present time. Is
that right?
(Mr Smith): Yes, we would
see the Olympic clauses replacing 22; clause 23 would then follow
suit; and clause 24 would not be needed.
14835. Finally, so far as clauses 28 and following
are concerned, it seems to you that they are unnecessary and suggest
they be removed?
(Mr Smith): That is correct
14836. The very last of all matters, Mr Smith,
now that you have dealt with your three concerns, is to go to
your final schedule which is exhibit 40, which is your request
for decision.[49]
So far as 1-14 are concerned, those are all concerned with specific
sites, are they not?
(Mr Smith): They are.
14837. You have already dealt with that matter
and we will not take any more time about that. So far as paragraph
15 is concerned, can you just explain that one?[50]
(Mr Smith): This relates to access
sites and it is about being able to plan our operations with a
reasonable degree of certainty. What we wish to have is a protocol
agreed with the Promoter, and I imagine other operators want the
same, so we get reasonable notice about interruptions; than we
can then plan around those interruptions; and that the Promoters
have an obligation to limit those interruptions to the minimum.
14838. So far as paragraph 16 is concerned,
that is dealing with the outstanding work to be done on timetabling.
Whether it be done by the ITWG or someone else is incidental,
is it not, as long as the rail freight gets confronted; but the
precise mechanism of how it is done matters not but the important
thing is that the work be done?
(Mr Smith): It is crucial
that the work is done because there are a number of commitments
and undertakings that are floating around which appear to rely
upon a positive and agreed outcome from the working groups. Clearly
that timetabling work has to be done and agreed by all parts of
the industry before these commitments can have any effect.
14839. So far as paragraph 17 is concerned,
that is a matter you have already referred to—the undertaking
about the capacity?
(Mr Smith): That the capacity
of the work for rail freight by 2015 is such as if there were
no Crossrail services, and that the freight growth we advised
the Timetabling Group had come to pass.
45 Committee Ref: A168, Office of Rail Regulation,
London Olympic Games and Paralympic Games Act 2006, www.opsi.gov.uk
(LINEWD-19605-068). Back
46
Committee Ref: A168, General duties of the Secretary of State
and the Regulator, Railways Act 1993 (c. 43), www.opsi.gov.uk
(LINEWD-19605-069). Back
47
Committee Ref: A168, The proposed Access Option as set out in
the Access Option Policy Paper, DfT, 30 March 2006: EWS objections
(LINEWD-19605-073). Back
48
Committee Ref: A168, Summary of EWS's requested amendments to
the Railway Matters Clauses 21 to 32 (LINEWD-19605-074
to -076). Back
49
Committee Ref: A168, Requests for Decision (LINEWD-19605-096). Back
50
Committee Ref: A168, Requests for Decision, Property and Capacity
(LINEWD-19605-099). Back
| 
