Examination of Witnesses (Questions 8900
- 8919)
8900. CHAIRMAN: The regulations in fact
reflect European Directives, do they not?
8901. MR ELVIN: And they give effect
to the various European Rail Regulation Directives, yes. BAA still
remain as a Petitioner. They have, we think, a single outstanding
issue, as we understand it, which relates to a desire to prevent
the closure of both the Piccadilly Line and the Heathrow Express
line at the same time during the construction of Crossrail. Whilst
clearly that is a sensible objective, and reasonable endeavours
have been offered to achieve that objective, final terms have
yet to be agreed since BAA currently seem to want an absolute
obligation not to do so, which does not appear to be a prudent
undertaking to give since it does not allow for contingencies
to arise which may need to be dealt with, notwithstanding an objective
which clearly all parties would seek to achieve which is not to
close them both at the same time.
8902. Finally, I just need to address the issue
of clauses 40 and 41. As I understand the position, the objection
that is principally taken is not to the arbitration provision
as such, but to the power to direct under clause 41. My Lords,
the Promoter has repeatedly expressed the commitment that possessions
on the main network and access rights over the main network will
be taken and applied for under the normal industry processes.
Indeed, it might be said, and indeed was said, by EWS and others
in the other place that to do so accords with the normal provisions
required by European law as well as UK law. I can confirm, as
the Minister said in the other place at third reading, that these
clauses are not intended to be used to undermine that commitment
to use industry processes, nor are they intended to be anything
other than a fall-back position. It is clear, in my submission,
as I put to Mr Bennett this morning, that, in the absence of the
rail clauses which are proposed to be deleted, that is, the bulk
of the rail powers, these, as freestanding powers, will not, in
my submission, give power to the Secretary of State to give a
direction which would empower the arbitrator to override the access
option. You have seen the power of the ORR; it is not modified
by these provisions. Once the other rail powers are deleted, there
will be no power to override the ORR's decisions or to override
the terms of the access option, so the arbitrator could not, by
his or her decision, override the outputs which the ORR is requiring,
so, although it may—
8903. CHAIRMAN: I am not sure I see the
point of them.
8904. MR ELVIN: It is in order to enable
that, if an arbitration is required, and this is, as I say, very
much a fall-back position, the Secretary of State can give such
direction as to ensure that, although the arbitrator has complete
discretion as to the final version of the award, what compensation
to allow and the like, nothing is specified which will have a
detrimental effect on producing the Crossrail project.
8905. CHAIRMAN: Mr Elvin, it is a fall-back
from what?
8906. MR ELVIN: It is a fall-back in
the event that an arbitration is required and the arbitrator—
8907. CHAIRMAN: But what is the situation
where you are going to need an arbitration now that you have got
rid of 21 to 34?
8908. MR ELVIN: It is where there is
a dispute in relation to possessions on the main network. It is
theoretically possible that there might be an issue which would
interfere with the ability to construct Crossrail and, whilst
the arbitrator, we say, can grant terms relating to compensation
and the like, it should not be on terms, if the Secretary of State
so directs, as to be inconsistent with delivering Crossrail, and
indeed that would be consistent with the section 17 provision
as well which gives the ORR a general duty to consider facilitating
the Crossrail works as part of the overall duties. My Lords, clearly
if your Lordships have views as to the retention of these powers,
those will be considered carefully by the Promoter and it may
well be that, if your Lordships express strong views as to those
provisions, we will reconsider the position as to whether amendments
are needed at the next stage.
8909. CHAIRMAN: I do not know whether
we are going to express strong views or any views at all. At the
present moment, it seems to me to be a parallel system to the
ORR.
8910. MR ELVIN: Well, it is not a parallel
system, my Lord. I am getting a note and, yes, I am reminded,
as indeed I mentioned to your Lordships last week, that this could
be an issue which has arisen not with Network Rail, for example,
and of course it is only if there is a dispute with Network Rail
that there would even be in principle an issue with regard to
the access option because that is a contract between Network Rail
and Crossrail, but there is a possibility that there would be
an arbitration over disputed possessions with either BAA or LUL,
which also have interests in the matter, and they would not be
subject to the ORR's duty under the Olympic-type power, and the
Secretary of State simply wants to make sure that it would not
be a mechanism for causing disruption to the Crossrail works whilst
not interfering with the arbitrator's power to award compensation
if, on the taking of possessions, there was an issue with regard
to losses caused to one of the other operators. It would not,
in my submission, allow the ORR's position to be overridden. After
all, the ORR's position is underwritten by European Directive.
8911. CHAIRMAN: I think this is very
obscure and it may very well be that we ought to put something
in our report to explain it to the House before they come to consider
the question of taking out clauses 22 to 34.
8912. MR ELVIN: My Lord, if there is
anything else which I can generate which will provide some assistance,
I will see what can be done over the next day or so to see if
there is any further assistance we can give you on practical circumstances
where this power might be used which does not interfere with the
access option in the way in which I have suggested.
8913. CHAIRMAN: I think it would be very
valuable if you did that.
8914. MR ELVIN: If we can give you an
illustration, obviously I will see what we can do. Let me make
it clear, my Lord, that, if your Lordships find the power ultimately
obscure, despite our attempts to explain it, then no doubt those
are matters which can be taken account of before further amendments
are made at the public bill stage. These are, I suppose, ultimately
public bill provisions.
8915. CHAIRMAN: I would like to make
sure that we give such guidance to the House in its public bill
sessions as we possibly can on this.
8916. MR ELVIN: But, as I said to Mr
Bennett, I do wish to make it clear that our position on this
is that it is a fall-back and that it is not considered that these
powers would allow introduction by the back door of a mechanism
to override the access option terms. We do not see that as being
justified by these provisions. If the Committee remains concerned
that that might be the effect, then no doubt we will be advised
of that in due course.
8917. CHAIRMAN: I think it would be a
very helpful thing to do because at the present moment I cannot
see, on the face of the drafting, why it does not do exactly that.
8918. MR ELVIN: Very well. My Lord, I
leave the matter there and, as I say, I will come back to you
if I can offer you further assistance. My Lords, thank you for
that and perhaps I might now sit down and let Lord Berkeley continue
with his case.
8919. LORD BERKELEY: Thank you, my Lord
Chairman. I will respond, and some of my witnesses will respond,
to some of Mr Elvin's comments as we go through the next witnesses
and when I wind up. I just would like to tell the Committee that
the next two witnesses, Andrew Cann from Hutchison Ports and Jerry
McLaughlin from Quarry Products Association, will have, I think,
very few views on access options and, if they are asked a question,
I suspect they will not be able to answer it because that is not
what they are here for, but they will of course say that they
are willing to try, but my last two witnesses certainly can have
views on that and some of these other things we have been hearing
about today. My Lord Chairman, my next witness is Andrew Cann
of Hutchison Ports.
MR ANDREW
CANN, sworn Examined by
LORD BERKELEY
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