Select Committee on the Crossrail Bill Minutes of Evidence

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.


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