Examination of Witnesses (Questions 15100
- 15118)
15100. Paragraph 20, amendments to the railway
clauses. Sir, Mr Elvin dealt with what we are intending to do
on the railway clauses at paragraph 1, 3, 6 and 7 (6) to (8) and
I am not going to repeat it, you know about the access option;
Day 48 Mr Taylor tells me. All of that will be dealt with by the
time of the House of Lords, so if EWS are not content, they can
come back. I am not going to get into the rights and wrongs of
the railways clauses, because I would not ever wish to waste the
Committee's time, but particularly not at half past seven.
15101. First, so far as Professor O'Keeffe's
points on EU law are concerned, three simple points. First of
all, I do not understand how this Committee is supposed to determine
tricky issues of EU law. That does not, with great respect to
the Committee, seem quite the right forum for that, but in any
event, secondly, in determining the access option Network Rail
and the ORR will have to make decisions in accordance with domestic
and EU law. With great respect to Professor O'Keeffe, I simply
did not understand how he was saying that the ORR would not be
under that obligation and if they gave leave of their senses and
departed from EU law, then EWS have a perfectly good remedy to
go to the High Court and judicial review and doubtless the High
Court would tell them where the ORR had gone wrong if it had.
There is a remedy there, it is just not a matter the Committee
needs to be concerned with. Finally, if there is a lingering concern
in the Committee's mind, in my submission, it is crystal clear
that Crossrail is an exceptional case, both within the regulations
and the Directive, and it is quite clearly a long-term, large-scale
investment—it did not do Mr Smith much credit to be disagreeing
with that, in my submission—£10 billion at 2002 prices,
there probably are not any larger railway projects in the EU.
It is perfectly obvious, again with respect to Professor O'Keeffe,
is that those who invest parts of that £10 billion will need
a considerable assurance about the level of service of Crossrail
continuing for longer than 10 years. Sir, in my submission, you
do not need to be too troubled about the EU law points.
15102. Paragraph 21, an undertaking that network
code condition G5 will not be invoked. I am tempted to say, as
I said to Mr Oatway, the Promoter does not intend to invoke G5.
22 and 23 on compensation, the simple point is that we propose
that compensation be given in accordance with normal industry
practice. I do suggest that it is a bit inconsistent for EWS to
say that they want normal industry practices on the access option
but they want special provision when it comes to compensation.
They will not get compensated for network changes of less than
six months but they would not get compensated for such work for
any other project on the railway. Mr Smith was keen to say that
West Coast Mainline was a project of commensurate size to Crossrail
and in a project like that there would be no compensation for
interference less than six months. If there are lacunae, and there
may be and the industry mechanism does not cover compensation,
then we, the promoters, will provide the compensation provisions
and check those with the ORR to make sure that they are fair and
lawful and so on and we will do so on a principle of no net benefit
and no net loss as set out, I think by Mr Elvin, at paragraph
13928 on Day 48. Sir, as always a quick whiz through but I hope
that covers all the crucial points.
15103. Mr Liddell-Grainger: Thank you
very much indeed. Mr George?
15104. Mr George: Thank you, Sir. I go
back to the points that I made in opening and I will simply expand
on them. The first was excessive land-take. As a matter of domestic
law re-enforced by the European Convention on Human Rights, compulsory
purchase power should never be conferred unless there is a compelling
need in the public interest. It does seem to those who I represent
that it is now perfectly plain that Crossrail, and indeed the
Department, have applied the complete reverse of the ordinary
presumptions. They have said, "We do not know whether we
need the land so we will put it in but give us lots of time because
we might eventually leave it out". That is wholly the wrong
approach. The Secretary of State has certificated on the cover
of the Bill that it complies with the convention. It plainly does
not when it includes within schedule six substantial areas of
land which it has conceded are not required. The Committee has
got the evidence about the various sites. We are now told, "Oh
well, give us another six to eight weeks", there is no explanation
whatsoever for delay and we would ask for undertakings in the
form in which we have sought. Where there has been movement, it
is helpful that it has been at the very last moment and inadequate.
15105. So far as the second point I raised,
which was the importance of the commercial interests, aggregates,
the environmental consequences and so forth, that all seems to
be common ground. What is not at all common ground is Ms Lieven's
statement which is there is not going to be any effect on rail
freight. We simply do not accept that, it has not yet been demonstrated
that the 2015 with growth freight can be carried and until that
work has been done, it is quite impossible for the promoters to
make those statements. That is a matter which the Committee is
invited to bear in mind and bear in mind even more strongly in
that the importance of aggregates on a Great Western line is so
readily accepted by the promoters.
15106. The third matter is the need for further
timetabling work. There was some nice footwork here by Crossrail.
First of all, they say it is necessary to have a timetabling group
and that it is necessary for it to report to the Committee because
the Committee needs to know the position. Then, when it becomes
clear that in fact the position is very unsure they say, "It
is not necessary anyway because the work will be done by Network
Rail in connection with the access option". They cannot have
it both ways. If it was necessary to set up the timetabling group
and to have that group's Chairman reporting to the Committee then
where deficiencies and work outstanding has been identified, and
it has in a large number of areas as shown in our exhibit—and
you will remember the exhibit with the question marks—then
the Committee should require that work is done before the Bill
proceeds and goes back to the House. We see no problem in that
but if the Committee is doubtful on that matter can I remind them
of what the then secretary of state said on the second reading
on 19 July 2005, column 1132 of Hansard, that he wanted "to
make it abundantly clear that we must ensure that we regard Crossrail
as part of the national network and that it does not squeeze out
to any unjustified degree other services that are equally necessary".
Part of your remit is to be satisfied that freight will not be
squeezed out. You simply have not got the material. As Mr Watson
said you could be supplied with the relevant information, either
yea or nay, provided that the department commissioned the work
now, it could be available in some six months so we would invite
you to require the promoters to carry out that modelling work.
15107. Fourthly, the question of commitments
to the infrastructure enhancements. I am bound to say, Sir, it
does strike us as wholly extraordinary that the promoters include
specific works in the Bill, require the timetabling group to assume
that they have been constructive and then to say, "We may
not construct them at all". It is even odder when they then
give an undertaking, as they did last Tuesday through Mr Elvin,
that the works done would be based on there being no material
diminution in performance from that reported in the timetable
working group report given the fact that report provides no benchmark
for the 2015 with freight growth scenario as Mr Watson confirmed
when I was cross-examining him. You have got a meaningless undertaking
given to the Committee and that is a matter which calls for investigation.
For our part, we see no reason why this Committee should not require
the construction of the freight works upon which the timetabling
has been done. We are grateful for what was said about the Acton
dive under. It is very significant that we are going to do that
one because that one is so important for the Crossrail trains
to go fast. We welcome that, though it would be rather absurd
if in the year before Crossrail opened there was one freight train
less a week and then Ms Lieven would be able to advise that our
undertaking is limited to a situation that freight was the same
as had been anticipated. We say that even the Acton dive under
should plainly be constructed.
15108. Fifthly, the matter of compensation.
You have heard a very considerable expert, Mr Oatway, on the point.
We are grateful for the concession made on G5 so it is rather
curious the way in which Crossrail word it. "We do not intend
to do something". In our view that is not an undertaking.
The purpose of an undertaking is so that if a promoter goes back
on his words he can be taken back before a parliamentary Committee
as, I regret to say, it has been necessary to do on a number of
promotions. If the promoter merely says that we intend to do X,
they cannot report back before the Committee and then maybe say,
"We did intend to do it then but, we did not undertake to
do it". There is a world of difference and you will have
noted how carefully Ms Lieven chose her words when on a number
of occasions she said, "We intend" and declined to give
an undertaking. It is an undertaking that we say that we are entitled
to. In respect of compensations, Mr Oatway has identified a number
of matters and you will have noted that there was no cross-examination
of his assertion that so far as the CTRL Bill was concerned, then
Act, a special compensation regime was introduced. If that was
the case for that Act, why not for this Act? After all, they are
two works being conducted under parliamentary powers and one would
have expected the same provisions for that matter.
15109. Sixthly, the railway clauses. Here, there
is another bit of clever footwork which says, "Mr Elvin last
week made a short statement on the matter we will not go into
it". What we say is that the promoters are quite unable to
justify the inclusion of the railway clauses in their present
form. We say that they plainly conflict with European law but
more importantly perhaps we say they are simply unnecessary. We
have a code in the railway industry and that would be sufficient
to deal with the matter. In a way the promoters accept that when
they say, "When we have got our access option we may come
back" but they keep saying, "We will keep the clauses
in reserve". We say that this Committee should simply say
that the case for those clauses has not been made out. We say
that particularly offensive are clauses 22(1) and 24 which include
the overriding duty on the regulator to exercise its access contract
functions so as to facilitate the operation of Crossrail and that
it would be vastly preferable to have the equivalent of the Olympic
Act power. You will recall that Mr Elvin said last week that "There
really was not any difference between the two", if that is
so then as was said by Mr Smith why can the promoters not be content
with the lesser option.
15110. Finally, one more general comment. I
am bound to say we do feel rather prejudiced. We call evidence
of an expert nature on timetabling matters and we also call evidence
on the effect of the scheme on aggregate production and we are
told so far as the first, "That was dealt with by Mr Elvin
last week". That is quite untrue, there was no cross-examination
of any witness last week on any of the 10 key concerns we have
on the timetabling process. That matter will go wholly uncross-examined.
In the case of Silverlink these matters were not raised and there
has been no one appearing before the Committee raising these particular
concerns. So far as the other matters, we were told Mr Elvin is
going to cross-examine someone else later, he will deal with tarmac
on that. It does not seem to us that that meets the point. The
context there is the Nuneaton link and the Gospel Oak link. We
were told Mr Elvin is going to cross-examine Mr Garrett on that.
With all due respect to Mr Garrett, he is not appearing for a
railway operator. We are the railway operators who are calling
the evidence and to be told that a third party is going to be
cross-examined on the matter at some stage in the future is, we
would say, very odd. The normal order of evidence is that evidence
is called and not contradicted and either is it taken as being
compelling or at any rate has great weight attached to it. We
would ask you to approach that matter because, in effect, the
views which have been expressed to the Committee by my witnesses
were, for the most part, not a challenge for what we say are not
very convincing reasons. I am very grateful to the Committee for
hearing the petition and I do not have any further submissions
to make.
15111. Mr Liddell-Grainger: Thank you
very much, Mr George. Can I ask one question of both of you. How
many meetings did you have between EWS and the promoters? Can
you tell me roughly?
15112. Mr George: It is difficult to
say because it varies as to quite what they were on. There were
some on site specific issues and some on the modelling group we
were attending.
15113. Ms Lieven: Sir, Mr Devereaux tells
me that in total over the last three years or so we had in the
region of 60 meetings covering lots of different issues.
15114. Mr Liddell-Grainger: Thank you
very much. It being quarter to eight, Mr George, can you do anything
in that quarter of an hour? If you cannot, I will call order.
15115. Mr George: Yes, I think we could
deal with it in a quarter of an hour.
15116. Mr Liddell-Grainger: I will stop
you at 8 o'clock on the dot.
15117. Mr George: Sir, if the Committee
would rather that we did not do it, we will stop now.
15118. Mr Liddell-Grainger: I call order
and we will do it tomorrow morning. The Committee now stands adjourned
until tomorrow morning.
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