Disapplication of franchising and access exemptions
( ) Before the Secretary of State exercises the power under subsection (1), he shall consult such persons likely to be affected by the exercise of the power..
I am sure that the Committees usual good humour will return after the previous, slightly more controversial debate. The clause allows for the disapplication or modification of certain franchising and access exemptions. The exemptions in question are those that remove the
As we have said several times, Crossrail is a massive undertaking. Its implications are not just physical, as they affect a complex web of agreements that characterise the railway industry. To facilitate the multiple changes required to expedite such a project, the Bill should adjust existing legislation, but the clause fails to ensure that those who will be affected by the changes are given the voice that they should be allowed prior to those changes coming into effect. My amendment gives the clause the necessary transparency and gives those who have not been given a voice the voice they should be allowed.
Mr. Harris: Clause 36 is needed because the railway clauses in the Bill work by making use of the regulatory system for the national rail network. However, the London underground and Heathrow spur networks, which are affected by the Crossrail proposals, are exempt from that regulatory system. The clause therefore enables parts of those exemptions to be amended or revoked where necessary to facilitate Crossrail services.
The Railways (London Regional Transport) (Exemptions) Order 1994, which is relevant to the Transport for London infrastructure, provided an exemption from the outset of rail privatisation, and hence modern rail regulation. Similarly, the Railways (Heathrow Express) (Exemptions) Order 1994 provided an exemption for the Heathrow spur. The clause enables parts of those orders to be amended or revoked, which would remove the exemption from rail regulation as regards capacity allocation and franchising, for purpose of facilitating Crossrail services.
Clearly both BAA, as the owner of the Heathrow network, and Transport for London, in its role in relation to the London underground, are important players in the Crossrail project. There is no need for the hon. Gentlemans amendment, as those parties are already involved specifically and individually in determining how best to manage complex interactions between Crossrail, the Heathrow spur and London Underground networks. Given that changes to exemptions would require a statutory instrument subject to annulment in the House, it is inconceivable that the affected parties would not be consulted before such a measure was made. I therefore hope that the hon. Gentleman will withdraw his amendment.
Stephen Hammond: I have listened carefully to the Ministers answer. He said initially that BAA and TfL, via the network of arrangements, were to be consulted. Will he clarify exactly what they are or whether they are the contracts that are already in place?
Mr. Harris: Consultation will inevitably take place in the circumstances referred to in the Bill. Essentially, the purpose of the hon. Gentlemans amendment, as he has already said, is to require the Secretary of State to consult. However, I believe that it is unnecessary.
Both parties are already closely involved in the project plan for Crossrail and are very aware of any effect on their own individual networks. BAA has petitioned against the Bill at Select Committee stage, and we are in discussions on the issues that it has raised. There are a number of interfaces in which the Crossrail team, the Cross London Rail Links Ltd, BAA and London Underground are already having the discussions that he wants to mandate in the amendment.
Stephen Hammond: I thank the Minister for answering the question that I wished to have clarified. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 ordered to stand part of the Bill.
( ) Before the Secretary of State exercises the power under subsection (1), he shall consult the Office of Rail Regulation and such other persons as he considers appropriate..
Here we go again on consultation. The clause deals with closures and, in essence, commits the Secretary of State to close railway lines where he sees necessary. At least, that is my understanding of it. It gives the Secretary of State such a power by means of allowing him to direct that certain provisions of the Railways Act 2005 will not be applicable. Again, I am sure that this is an absolutely necessary step, but it must be done in the right way.
The discontinuance of a railway service, however temporary, can cause a great deal of disruption for an operator and for passengers, and I am sure that the Minister will say that adequate consultation will be carried out, but we need to be clear that it will be, so that the affected parties can also adapt as they see fit. The consultation should include, but not be restricted to, the Office of the Rail Regulator.
I am trying to ensure that the Secretary of State has the freedom to decide who else it might be appropriate to consult, but I certainly want to ensure that the powers of consultation are clear and defined in the Bill, and that passenger groups, the appropriate train operator and those who might be affected are also consulted. The amendment is perhaps slightly different in tone to the last one, but it provides for the sensible and responsible thing to do. I hope that the Minister will agree.
Mr. Harris: I rise to disappoint the hon. Gentleman. The purpose of clause 37 is to ensure that the closure provisions of the 2005 Act do not apply when such a closure is required in connection with the construction or maintenance of the Crossrail works, or as a consequence of Crossrail passenger services. That disapplication does
If the Secretary of State decides whether to apply closure proceduresit is a function that she cannot delegatethe clause provides that she would consider the closure proposals by, or on behalf of, the nominated undertaker, and challenge them as necessary in reaching her decisions.
There is nothing to prevent the Secretary of State from consulting when she thinks that it would be appropriate, especially given that she would consider the proposals in the context of her duties to the national rail network, not just the Crossrail project in isolation. She might, for example, look at the extent to which the interests of others had been taken into account in the process, where possible. She might also decide that a closure merits being subject to the closure procedures in the 2005 Act with the consultation process that that entails. However, I think that she needs some flexibility to do what is appropriate in each case rather than to have a blanket requirement to consult.
This issue gets to the nub of our opposition to the amendment. What concerns me about the blanket requirement is that it risks creating false expectations of what the Secretary of State would be able to do in the light of consultations. For example, if a consultation on a small scheme resulted in arguments opposed to the closure, it would still have to go ahead to enable Crossrail passenger services to proceed. A few closures, such as of services and parts of stations are central to, and part of, the project proposals before Parliament. As I have said, the Secretary of State would be duty bound to consider those in the wider context of the UK railways.
Finally, the finer details of closure requirements are likely to emerge in the detail design process. Network Rail is likely to undertake most of the network works and will play a major part in the detail design process. It will be in Network Rails interest to ensure that the wider interests of the network and its other users are taken fully into account from the outset. I hope, perhaps in vain, that following this explanation, the hon. Gentleman will see fit to withdraw the amendment.
Stephen Hammond: Again, I listened carefully to the Minister, and again, I could not understand a lot of what he said. Even after consultation, it may be necessary to close certain things, even if the people who are consulted disagree with that. That is in the nature of consultation. I do not see how the amendment, other than in the very clearest way, is a major imposition on the Secretary of State. It does not say that they must consult with any or every person as would wish to be consulted with. It refers to
and such other persons as he considers appropriate.
The Minister has said that it is inconceivable that the Secretary of State would not consult such people. Why, therefore, does he not wish to see that in the Bill? I find this extraordinary. We have accepted all the way through that this is an exceptional project requiring exceptional powers and exceptional discretion, but when we can put in the Bill a definition of those
Mr. Harris: As I said in my original remarks, I am happy to expand on them. Under the 2005 Act, a closure has a wide definition. If part of a platform on a station had to be closed, I would see no benefit in triggering a consultation process on such a very small closure. The effect of the amendment would be that such a process would have to commence on every single closure as defined by the 2005 Act.
I accept that in most peoples minds, a closure means that of a railway station or a line. I accept that that is a concern. With regard to the wider responsibility for the rail network, it is frankly inconceivable that any Secretary of State would not consult on a major closure. However, the amendment would end up defining very many restrictions and very small closures as closures and would trigger a consultation system that would not be warranted in many cases.
Stephen Hammond: I listened to the Minister, but that is not entirely what the amendment says. It refers to
and such other persons as he considers appropriate.
If, under the 2005 Act, it was a minor closure, in those circumstances it would not be appropriate to consult with everybody. The amendment gives the Secretary of State exactly the flexibility that the Minister requires. I am tempted to withdraw the amendment, but at this stage I would like to test the will of the Committee, if for no other reason then to ensure that we are all awake.
Question put, That the amendment be made:
The Committee divided: Ayes 5, Noes 8.
Division No. 5 ]
Question accordingly negatived.
Clause 37 ordered to stand part of the Bill.
Clauses 38 and 39 ordered to stand part of the Bill.
Duty to co-operate
, but is an asset which enables the construction, maintenance and operation of Crossrail to occur..
In the same vein as many clauses in the Bill, clause 40 contains provisions to ensure that those charged with
interact with the existing railways,
so it is certainly obvious that, as set out in the clause, there is a need for this provision. My intention in tabling the amendment is to ensure that there is absolutely no scope for doubt as to which of those assets we are talking about. I do not wish to return to the alcoholic allusions that we went through last ThursdayI think we have probably done that one to death. My concerns in this case, however, are similar. As the clause stands, it seems that the nominated undertaker can take action with regard to any railway asset anywhere. Although I am sure that the Minister is about to reassure us that the nominated undertaker will not use that power haphazardly or unsystematically, I cannot see any reason why we cannot specify on the face of the Bill that the assets that require the exceptional powers must be those that relate to Crossrail. Otherwise, there is scope for ambiguity. I believe that the amendment is rational and that the Bill would benefit from its inclusion.
Mr. Harris: Crossrail will clearly interact a great deal with other railway assets both before and after it is built. For example, in the central area new Crossrail tunnels and stations will be constructed in and around existing underground stations and running tunnels and there will be more than £2 billion of Crossrail investment on the national rail network. Generally, the preferred option will be for whoever is appointed as the Crossrail nominated undertaker to address interface issues with owners of other railway assets on the basis of standard industry mechanisms. Clause 40 is, therefore, a provision that we should not need to rely on often.
However, the existing arrangements that govern both the national rail and London underground networksthat is where the interfaces will mostly come frommight not address all the issues that could arise in relation to a major new project such as Crossrail. It is therefore prudent to have the ability to resolve them.
It is important to point out that the clause works both ways: the controller of a non-Crossrail railway asset can also invoke the provision and require the nominated undertaker to agree how a matter is to be resolved. The object is to ensure that neither the nominated undertaker nor the other party can act unreasonably in dealing with a problem related to the interaction of the Crossrail works with overland or underground railway assets.
The amendment presents two problems. First, it would limit the nominated undertaker to using the power only where the non-Crossrail asset was one that enabled the construction, maintenance or operation of Crossrail to occur. In fact, problems could arise in relation to a wide range of railway assets, not just the subset.
The clause already requires the nominated undertaker to meet the test that the matter at issue must be one that affects the construction, maintenance or operation of Crossrail. We believe that that is the appropriate qualification, rather than the stricter test that the amendment would set.
The second problem is that the limitation that the amendment would impose would not apply in respect of subsection (2), so the provision would be unfairly weighted in favour of the non-Crossrail party. I do not imagine that that is the intention, but it would be the effect.
My key point is that the creation of Crossrail, for which I detect considerable support in the Committee, should not be impeded because an interface issue with another railway network cannot be resolved. Nor should Crossrail cause unnecessary problems for other railway networks without there being a means of resolution. The clause is an essential back-up provision that recognises the fact that integrating a new railway on the scale of Crossrail is difficult but should never be impossible.
I hope that that is explanation enough to persuade the hon. Member for Wimbledon to withdraw his amendment.
Stephen Hammond: It is indeed a very full explanation. Certainly, I would not want the unintended consequence of subsection (2) not falling within the limitation, and that is a considerable demerit in my drafting of the amendment. The Minister mentioned the circumstances regarding the asset where those powers would be required. Can he give us an example of where it would not be an asset that enabled the construction, maintenance and operation of Crossrail?
Mr. Harris: One example that springs to mind would be where a Crossrail tunnel was being built very close to, or perhaps underneath, an existing London underground line. Although that particular line would not be defined in the terms of the hon. Gentlemans amendment, it would nevertheless be necessary to come to some agreement with London Underground to allow the unimpeded progress of the construction to take place.
Stephen Hammond: That was an interesting explanation. I would have thought that that was exactly the asset that would enable the construction of Crossrail. None the less, I take it that the Minister is trying to be helpful and I accept that my amendment would have an unintended consequence as it relates to subsection (2), which is my drafting error. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 ordered to stand part of the Bill.
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