Examination of Witnesses (Questions 8880
8880. MR ELVIN: I think I have probably
covered the majority of my note on this particular point; I will
end by saying this.
8881. The ORR has a statutory function to direct
the terms of the access option. We submit that, with respect to
your Lordships, requiring us to do the works actually cuts across
the discretion of the ORR. It does not directly require your lordships
to rewrite the Railways Act; you could ask for an undertaking,
I suppose, as I discussed with Viscount Colville this morning,
but the difficulty with that is it is effectively providing something
outside the industry mechanism, and is providing something which
would tie us to infrastructure works which may not be necessary
or which may be inappropriate in comparison with what is determined
when the modelling is complete. Given the level of certainty we
say the ORR's decision will achieve by setting an objective test,
it would be wrong to undermine the approach of the industry mechanism
by requiring something that the ORR specifically considered and
rejected. We therefore say, with respect to this Committee, the
ORR is best placed to balance the interests; the ORR is best placed
to decide what is necessary and what is not to deliver the access
option, and we respectfully ask your lordships to respect the
ORR's decision on this issue, also bearing in mind the general
plea to respect industry processes coming from the industry. Consistently
with that, we say, the industry's requests to require us to carry
out infrastructure at this stage is both inconsistent and is not
supportable when one looks at the way in which the issues have
been dealt with by the ORR.
8882. My Lord, that is all I was going to say
about the infrastructure works. Much more shortly I was going
to deal with the issue of blocking rights.
8883. This is an issue whether existing train
operators could exercise blocking rights to prevent possessions
that are necessary of the network in order that Crossrail can
be constructed. Although the issue is raised now it should not
be an issue, we say, and this is where the gobbledegook crept
into my note in the early hours of the morning. Paragraph 42(1),
should say: "We no longer propose any Bill amendments to
cause interference with standard industry mechanisms". We
seek to introduce simply a provision based on section 17 of the
Olympics Act which was one positively urged on us before the House
of Commons; EWS even asked us to give an undertaking in the House
of Commons to introduce such a power. It therefore should be uncontentious
but we have now introduced such a power.
8884. The legislative mechanism proposed for
dealing with such concerns as exist would be, if this amendment
were acceptable, for the Crossrail Bill to give the ORR an explicit
additional, but not overriding, duty in connection with the construction
of Crossrail. So the ORR would be required to consider Crossrail
as part of its duties but it would not be the overriding duty
that was originally proposed in the powers that are going to be
removed, and such a specific duty, as we say, has a clear precedent
in section 17 of the Olympics Act, and the duty would be time-limited
and would have no relevance to the operation of Crossrail services
once construction was completed.
8885. That is the current proposal that we circulate.
8886. CHAIRMAN: Is there now going to
be a parallel provision to section 17 proposed?
8887. MR ELVIN: One of the two amendments
we are proposing to put before the House of Lords at the next
stage is a duty modelled on section 17. In place of the overriding
duties we are going to put in an Olympics duty which we were asked
to put in by EWS before the House of Commons.
8888. CHAIRMAN: But it is similar?
8889. MR ELVIN: Yes. If necessary I can
make sure your Lordships have a copy of section 17 so you can
compare the two. What this means is the ORR would have to oversee
a track possession regime by whatever means the ORR thought appropriate
to balance all of its existing duties to enable the Crossrail
construction works to take place. This would be under the current
mechanism of the Network Code which, in its current form, enables
the ORR to deal with blocking rights but it is open to the ORR,
in accordance with normal industry processes if necessary, to
make amendments to the Network Code from time to time.
All we say about that is we leave it in the
hands of the ORR to follow the normal mechanisms to deal with
these issues, subject only to the Olympic-style duty.
8890. As I said in paragraph 45, EWS made specific
representations to include such a duty in place of the railway
clauses we are now proposing to delete, see EWS' evidence to the
House of Commons at paragraphs 14822-14824, comments in a letter
of 21 September last year and EWS's submissions to the ORR which
you have seen earlier.
8891. You will see in response to clause 22
that EWS specifically asked for the Olympics power, and section
17 in fact is quoted there, and you will see in similar form a
specific duty was put on the ORR for the Olympics "to consider
the objective of facilitating the provision, management and control
of facilities for transport in connection with the London Olympics".
Something similar is proposed with regard to the construction,
et cetera, of Crossrail, so we are following now what EWS asked
both the Commons and the Regulator to include.
8892. It is therefore difficult, we say, to
see how our approach to blocking rights could now be regarded
as objectionable, so I say no more about them.
8893. I then just deal very briefly with three
of the other Petitioners this week.
8894. You have already heard from Lord Berkeley
on those he is representing.
8895. So far as EWS is concerned, we understand
they are pursuing the points related to infrastructure and blocking
rights, and they seem to recognise, even with their case, that
there is a need for flexibility. I mentioned Mr George's statement
last week that, even in the list of six improvements, you could
not say that anything specific was defined by them, and that there
was at least some scope of flexibility within them. Exhibit 40,
page 4 of the House of Commons' exhibits, recognises the difficulty
of inflexibility. As I have set out in the note, what was requested
by EWS in the House of Commons, which again suggested there was
a need for a mechanism to allow change even if an undertaking
had been given there, and then, finally, the letter of the 17
March this year in response to the ORR's provisional decision
did not suggest that the ORR's approach should be departed from,
that is to say, the flexible approach based on specifying outputs
rather than tying Crossrail's hands to providing infrastructure
at this stage.
8896. Your Lordships might think that, once
you take the step of recognising the need for flexibility, as
EWS appears to, the difference between that position and that
of the ORR in specifying an objective standard to be attained
by producing infrastructure enhancements as necessary is more
apparent than real.
8897. With regard to the other issues, to the
depot site at Old Oak Common, we hope, and I underline that, that
this issue is largely resolved and terms have almost been concluded
with EWS which propose a sale by EWS of its interest in Old Oak
Common to CRRL for an agreed consideration. If that does not materialise
no doubt your lordships can hear the issues quite shortly.
8898. In addition, if there are any outstanding
points relating to Paddington New Yard and Plumstead Yard, the
strategic freight sites, these will be addressed this week also,
and I did mention them to you last week when we thought they were
going to be addressed and I will not deal with them any further,
unless there is a need to do so when EWS present their Petition.
8899. So far as Network Rail are concerned this
week, we understand that Network Rail may be raising certain issues
regarding their role as infrastructure manager of the Crossrail
infrastructure. There is currently a series of negotiations involving
Network Rail and TfL and others as to the respective responsibilities
for Crossrail infrastructure. Our position on this is that it
really is not a matter for your Lordships, with respect, since
this is a discussion and a negotiation which is taking place under
existing railway legislation and it is a discussion between those
parties who will have to reach agreement in order to deliver the
project in practical terms. So far as the Promoter is concerned,
given that Network Rail is infrastructure manager of the main
network from which Crossrail must have access to the central area,
it is logical for Network Rail to have a role as infrastructure
manager under what are called `the ROGs', that is, the guarded
rail regulations, and also a role under the access regulations.
However, depending on what Network Rail say tomorrow, and I understand
they want three hours, although I am not entirely sure what they
are going to say in three hours, we will take it further, if necessary.
As far as we see it, this is an argument taking place outside
the Committee under current legislation rather than a Bill issue,
but no doubt we will hear further from Network Rail tomorrow.