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Session 2007 - 08 Publications on the internet General Committee Debates Crossrail Bill |
Crossrail Bill |
The Committee consisted of the following Members:John Benger, Mick Hillyard,
Committee Clerks
† attended
the Committee
Public Bill CommitteeTuesday 27 November 2007(Morning)[Ann Winterton in the Chair]Crossrail Bill10.30
am
The
Chairman:
I see that members of the Committee are
bright-eyed and bushy-tailed and longing to get on with our
deliberations. Hon. Gentlemen may remove their jackets if they wish:
that applies to all of our
proceedings.
Clause 30Crossrail
access contracts: disapplying requirements for
approval
Stephen
Hammond (Wimbledon) (Con): I beg to move amendment No. 49,
in clause 30, page 20, line 37, after ‘Regulation’,
insert ‘and other interested
parties’.
I am
sure that we will endeavour to live up to your strictures to be alert,
Lady Winterton, and will make good law. The clause will remove the
requirement for new access contracts to be approved by the rail
regulator where they relate to a railway facility forming or to the
principal Crossrail tunnel running through central London. The powers
under the clause are exercisable by the Secretary of State, albeit
after consultation with the Office of Rail Regulation about the terms
of the contract.
The
purpose of the amendment is to insert the words, “other
interested parties”, after the word “Regulation”.
While it is wholly appropriate that the regulator should be consulted
in such a situation, other parties likely to be affected by the
provision are excluded from the consultation. In particular, parties to
the contract itself will have something to say on the subject. The
amendment is designed to allow other interested parties to communicate
with the Secretary of State before she decides to bypass the provisions
of the Railways Act 1993 and allow an access contract to come into
force without the approval of the regulator. While the motivation
behind the clause is clear and I have no objection to it, I think that
it would benefit from a more open and fair consultation under the
amendment.
The
Parliamentary Under-Secretary of State for Transport (Mr.
Tom Harris):
Good morning, Lady Winterton. May I welcome
you back to the
Chair?
It is often
advisable to start as one means to go on, but I will not do so this
morning, because I intend to begin by more or less accepting the
principle of the amendment. That pattern is not likely to be repeated
throughout the rest of the day. The amendment
requires consultation with interested parties on the terms of a
proposed access contract for Crossrail services in the
central tunnel that would not be subject to the ORR’s approval.
There is nothing in the clause to stop the Secretary of State from
consulting as she considers appropriate. The point of subsection (4) is
to ensure consultation with the ORR, as the body with expertise and
responsibility, on the terms of access
contracts.
Although
I do not think that it is absolutely necessary, the amendment does have
some merit. The only reason that I ask the hon. Gentleman to withdraw
it is that I would like parliamentary counsel to see the proposed
wording to ensure that it is robust. If the hon. Gentleman agrees to
withdraw the amendment, we will bring it back on Report and give it a
fair
wind.
Stephen
Hammond:
It is such a shame that the Minister does not
propose to carry on in the same vein all day. He has
rather knocked me off my feet by accepting, this early in the day, that
one of our amendments would have a good effect. Given what he says, I
am very happy for him to pass the wording on to parliamentary counsel
and to bring back the proposal on Report. I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave, withdrawn.
‘which shall be subject to
annulment in pursuance of a resolution of either House of
Parliament.’.
This
is a probing amendment with the purpose of seeking a clarification from
the Minister about the appropriate parliamentary procedure called into
action by the clause. I may well have misunderstood that procedure, but
I should be grateful for clarification. In other parts of the Bill
where the Secretary of State exercises her powers by means of statutory
instruments, such an instrument is subject to annulment by Parliament.
That is not so in clause 30. As the Committee will be aware, statutory
instruments may take one of three forms: some are passed by the
affirmative resolution procedure, under which they must be approved by
both Houses before they can become law; some are passed by the negative
procedure under which they are merely laid before Parliament; and some
are not laid before Parliament, but Parliament can annul them. The
parent Act states in which form the relevant power should be exercised
under parliamentary procedure. It would appear from clause 30(5) and
(6) that the statutory instrument in question is to be laid before
Parliament, but is not subject to annulment. Should I therefore assume
that the appropriate procedure is the affirmative resolution procedure?
If so, will the Minister explain why it is different from the other
ways in which the statutory instrument is used in the
Bill?
Mr.
Harris:
Clause 30 enables the Secretary of State, by
order, to remove the need for ORR approval to access contracts or
amendments so that the Crossrail service can use the central tunnel or
railway facility associated with it. It is essentially new
infrastructure, specifically designed to carry Crossrail services, so a
reserve power is appropriate to ensure that those services are not
subject to approval. The Secretary of State would be required to
consult the ORR on the terms of any contract to which the order
relates.
In response to the hon.
Gentleman’s question, the statutory instrument is not
legislative in that respect, unlike the regulations that are made under
clause 33, which are subject to annulment. However, the making of an
order under clause 30 can reasonably be delegated to the Secretary of
State, who would inform Parliament of such a measure. The Delegated
Powers and Regulatory Reform Committee will look at the proposal and we
will pay attention to any observations and recommendations that it
makes. With those reassurances, I hope that the hon. Gentleman will
withdraw his
amendment.
Stephen
Hammond:
As I said at the outset, the amendment was very
much of a probing nature, and I tabled it to understand exactly how the
Government intend to use their powers. I listened carefully to the
Minister, and I shall be interested to see what the Delegated Powers
and Regulatory Reform Committee proposes. I beg to
ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 30 ordered to stand
part of the Bill.
Clause
31
ordered to stand part of the
Bill.
Clause 32Power
of Secretary of State to require entry into access
contract
‘( ) Any person
who suffers loss by the directions under this section shall be entitled
to be compensated by the Secretary of
State.’.
Clause
32 is another example of measures that we have seen consistently during
the course of the Bill, in which the Government give themselves more
power to direct the private sector to comply with the needs of
Crossrail. As we have said before, this is an exceptional undertaking
and, therefore, it is an exceptional Bill, which requires exceptional
powers. We have said several times that such powers are often wholly
necessary. We have seen such measures in previous Bills, as the
Minister often reminded us last
week.
However worthy
the clause, I doubt whether the Minister will fail to reflect our
amendment. Do the Government want to be seen to be digging up the
centre of London without due regard to people maybe adversely affected
by the project? I certainly applaud the exhaustive work done by the
Select Committee in listening to the concerns of individuals and
businesses on which the project will have an impact. For the same
reason, I welcome the clauses providing for
compensation to be paid to the railway asset operator, who may suffer
financial loss as a result of Government intervention. We are therefore
surprised and concern that there is no provision for compensation in
the clause.
My
amendment proposes that at the end of line 40 in clause 32, we insert
the words:
“Any person who suffers
loss by the directions under this section shall be entitled to be
compensated by the Secretary of
State.”
The clause
enables the Government to force an owner of a railway facility to open
it up for the purposes of
constructing Crossrail. It provides that the ORR must approve the terms
of any such imposed contract except, crucially, the terms relating to
financial charges. In other words, the Government can demand to enter
into an access contract with the facility operator but they can also
decide how much they would pay for the privilege. The
matter is apparently not open to negotiation, nor to independent
scrutiny via the regulator, which strikes me as unfair.
The purpose of my amendment
therefore is to ensure that facility owners do not suffer financial
loss as a result of any Government intervention. If a facility owner is
forced to enter into a contract with the Government under terms which
mean that they get less than they would normally get for such a
contract they should be appropriately compensated to make up the
difference. As I said at the outset, I accept that a project of this
nature requires the Secretary of State to take on certain exceptional
powers, but I do accept that the private sector or the private citizen
should necessarily suffer as the clause implies they will. I look
forward to receiving some reassurance from the
Minister.
Mr.
Brian Binley (Northampton, South) (Con): I, too, seek
clarification from the Minister on the point made by my hon. Friend the
Member for Wimbledon. The hybrid Bill Committee spent a lot of time
making sure that people would be fully compensated and that
compensation codes would be written into the whole
Crossrail process. Indeed, we listened to many
petitioners who thought that they were not as well supported respect as
they should be.
The
general thrust of the Committee’s work was that those people
should be protected, and in our report to the House we made that point
again and again. They think that the Government, not deliberately but
often as a result of insensitivity, can roll over them without paying
regard to their concerns or their need to be properly considered. I was
proud to be a member of that Committee for that very reason, because
our work was a perfect example of good government working in the way
that it should. I should like to know whether the Government can demand
to enter into an access contract with a facility owner and can decide,
as my hon. Friend said, how much they will pay for the privilege. If
they can take such action, it would run counter to the general thrust
of the Select Committee, which would be a matter of
concern.
Mr.
Mark Field (Cities of London and Westminster)
(Con): May I associate myself with the
comments made by my hon. Friends the Members for Northampton, South and
for Wimbledon? There is likely to be a new regime on large-scale
planning applications which the Government will wish to push through
Parliament, and I do not want to prejudge the nature of the debate both
in the House of Commons and in another place. However, I have some
sympathy with the Government’s view that some large-scale
developments, whether Crossrail, airport expansion or nuclear power
sites, are vital construction projects, and we simply cannot allow the
long public inquiries and enormous delays that affected similar
developments in recent
decades.
Obviously,
one of the great difficulties is that we have a culture in the House
that gives individuals the right to have their say. There is also a
process of legal and
sub-judicial inquiry. One of the attractive aspects of the French
scheme—I accept that France has a completely different legal
system—is the notion that certain projects are in the national
interest. Of course, the flip side is that individuals who suffer
receive compensation, no questions asked. In the case of Crossrail,
that would be residents who live
nearby.
10.45
am
The amendment,
which I hope is helpful, at least begins to point in the direction in
which I suspect the Government want to go with projects such as
Crossrail. In other words, they wish to streamline the entire planning
system, and I have some sympathy with that view. Clearly, we need to
seek out precisely what is intended and we have always had an eye
towards local opinion forming. However, the other side of that equation
must surely be that those individuals whose rights are subverted in
some way qualify immediately for compensation. The amendment, I hope,
would at least provide a step towards that—a template that the
Government must look at to ensure the balance between the protection of
local desires, needs and rights and the broad interests of the
country.
There
is no doubt that the broad interests of London, the south-east and,
indeed, the country require that Crossrail be built rapidly and to high
specification, and that it be up and running at the earliest stage.
However, there is little doubt that the lives of hundreds of thousands
of people will be inconvenienced. In relation to clause 32, we are
really discussing the extent to which the Secretary of State will take
powers beyond those envisaged in the Bill. Those individuals who suffer
should be fully compensated for whatever rights they have to forego in
the public
interest.
I
hope that the Minister will give serious consideration to that point,
even if he feels that the wording of the amendment is not quite right,
because we need to get this important debate right if we are to ensure
that the large-scale construction projects to which the House will be
committed in the coming decades are built properly and to
specification, but in a way that minimises the dissatisfaction of the
many people who will suffer as a
result.
Sir
Peter Soulsby (Leicester, South) (Lab): I have no doubt
that the amendment is well intentioned, but I spent the best part of
two years serving on the hybrid Bill Committee and,
as the hon. Member for Northampton, South reminded us, that Committee
spent a considerable time looking at issues of compensation and how
land and property owners would be affected by Crossrail during
construction and once it was
operational.
We looked
in considerable detail at those whose land and property might be taken
for the Crossrail project, those who might be affected by the railway
passing under their property and the extent to which the existing law
and regulations would provide them with adequate compensation. In broad
terms, we concluded that the compensation code, about which most of us
knew very little when we embarked on the process, was widely based and
appropriate for the overwhelming majority of
situations that would emerge during construction. There were one or two
particular examples
to consider, such as the Smithfield market traders, who might not have
got adequate compensation under the code due to a rather peculiar and
long-standing arrangement for their leases, but that was very much the
exception.
While I am
sympathetic to ensuring that people get compensation, I can say that
those Members who served on the hybrid Bill Committee were in general
reassured that the ways in which the code would
operate would be adequate for the overwhelming majority of
circumstances. Therefore, the amendment is unnecessary. I hope that the
Minister can reassure us that the clause is sufficient to ensure that
the compensation code will apply in the circumstances that have been
envisaged here and be more than adequate, as we concluded it will be,
in other
circumstances.
Mr.
Harris:
I think that I can offer reassurance to all
Members who have expressed concern about the clause. First, I draw
their attention to the fact that it stands within the part of the Bill
entitled “Railway matters”, which sets out a framework
for the operation of Crossrail services following the construction of
the Crossrail
tunnel.
Subsection (1)
states:
“The
Secretary of State may give directions to a facility owner requiring
him to enter into an access
contract”.
The facility
owner in that regard is the owner of the rail network—in other
words, Network Rail is the intended facility owner. I can understand
why colleagues may have thought that that wording referred to owners of
private enterprises on the tunnel route, but that is not the intention
of the
clause.
Clause
32 deals with the situation in which agreement cannot be reached with
the infrastructure owner for an access contract for Crossrail passenger
services that for at least some of their journey use part of the
central London tunnel. It makes use of the section 18 procedure under
the 1993 Act for agreements that have already been negotiated, but the
process is modified so that the ORR must approve the contract’s
duration and the non-financial terms that address directions made by
the Secretary of
State.
The ORR will
set appropriate financial terms for the access contract so that the
infrastructure owner is appropriately paid for the access it provides.
Clause 32 forces it to sell parts for use by Crossrail services, rather
than selling them to another operator or leaving them
fallow. If that requires contracts between the
infrastructure owner and other operators to be amended, it is dealt
with under clause 33, which considers compensation. As regards the
payment of money between the rail owner and the train operator, the ORR
must consider whether to undertake an access charge review, which would
ensure that the access charges could be reset as
necessary.
As to the
payment of money between the Crossrail project and any affected train
operators, I expect any further compensation necessary to be dealt with
under the normal industry process or adaptations agreed with the ORR,
as I explained at our last sitting in response to the debate on
amendment No.
46.
Essentially, any
existing operator that has to change its access to the existing rail
network—not the Crossrail network—as a result of
Crossrail services running will be forced to enter into a revised
access charge regime.
That means that, in the first instance, the existing operator will pay
fewer or less access charges than it would normally pay without
Crossrail services being
there.
Further to
that, if the operator suffers a loss of business economically as a
result of losing a particular path to a Crossrail
service, it will be up to normal industry procedures to ascertain what
compensation has to be paid to that train operating company. That will
be dealt with under clause 33 but according to normal accepted industry
procedures, which have already been proved to work quite
well.
Following that
explanation, I urge the hon. Member for Wimbledon to withdraw the
amendment.
Stephen
Hammond:
I listened carefully to the
Minister—certainly to the latter part of his explanation on how
there will be compensation under clause 33. However, I bring him back
to the beginning of his speech and the fact that the facility operator
post-construction is bound to be Network Rail. The intention is that it
should be Network
Rail.
It may be the
intention for the facility to be one that is owned by Network Rail, but
that is not what the Bill says. The Minister should therefore either
agree to the Bill saying “Network Rail facility” or, if
he intends the provision to be wider, accept my amendment. If he is not
prepared to consider amending the Bill in that way, I shall test the
Committee’s view on the
amendment.
Mr.
Harris:
I accept that “the facility owner”
is an ambiguous term, but it has been recommended for the purposes of
the Bill and, although I am speculating, given that Network Rail is
currently the private owner of the infrastructure, I do not expect that
situation to change at any point in the next 10 years during the
construction of Crossrail. However, if it were to
change, that would have a knock-on effect on the existing legislation.
Simply to talk about the owner of the infrastructure is far less
ambiguous than the hon. Gentleman suggests. However, if he is going to
ask the Committee to vote on the amendment, I must challenge the
premise, which he stated clearly, of compensating private owners along
the route of the Crossrail tunnel during
construction.
I have
already made it quite clear that this part of the
Bill refers to the operation of passenger services
following the construction of Crossrail. The hon. Gentleman’s
concerns about the lack of compensation arrangements for private owners
who might be inconvenienced by construction do not apply in this case.
I again urge him to withdraw the
amendment.
Stephen
Hammond:
Again, I have listened carefully to the Minister.
The amendment does not say anything about construction. It talks about
the loss suffered by direction under this part of the Bill, if directed
by the Secretary of State. It was the Minister’s presumption
that it deals with construction. It could be relevant during
construction, but it could also be relevant to the operational
phase.
From
our many visits to railway stations up and down the country, the
Minister and I know that at a number of stations—I cannot think
of one on the Crossrail route—Network Rail is the prime
operator, but certain parts of the infrastructure around the station
are owned by heritage groups and others. They might be the facility
operator at some stage. To facilitate Crossrail, it might be necessary
to use their lines and their
paths.
The Minister
seems to imply that compensation is in some way wrong. In the spirit of
the Bill, we have accepted that exceptional powers are needed that will
sometimes override the private interest for the public good, but that
there should be some payment for that overriding. Therefore, I am not
minded to accept his explanation unless he can reassure me that he has
accepted that “facility owner” is an ambiguous term.
Unless he proposes to clarify and redefine that matter on Report, I
will test the will of the Committee on the
amendment.
Mr.
Harris:
I hope that this is the last time that I
contribute to this debate. First, “facility owner” is the
conventional term used in all rail legislation, and it has been used in
previous rail legislation. Secondly, it is important to respect
existing industry practices. Any conflict between
train operating companies over pathways is already provided for in
existing industry processes. It is not up to the Committee to start
taking the existing processes to bits. They already have the support of
all the train operating companies, the ORR, the Government and Network
Rail.
The hon.
Gentleman is in danger of taking the Committee into a vote on a
misinterpretation of what the clause means. I absolutely agree with him
that if the industry process did not already exist, it would be
important for the Government and the Bill to make a point of ensuring
that a compensation process did exist. However, as the industry
processes already exist, and as the industry itself is not asking for
any change to them, I fail to see the point of taking the issue to a
vote. If he does so, I shall urge my hon. Friends to vote against the
amendment.
Stephen
Hammond:
After the Minister replied and at the outset of
my remarks, I said that we accept that there are normal industry
processes and that those are dealt with under clause 33, as he also
pointed out. This is a particular issue about a particular subsection.
I listened carefully to what the Minister said. I shall withdraw the
amendment, but give notice that we might table a similar proposal on
Report. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
32
ordered to stand part of the
Bill.
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