Examination of Witnesses (Questions 9240
- 9259)
9240. My Lords, I leave, if I may, what Mr Berryman
said and I come briefly to the Access Option. Our support for
the Access Option was premised on our understanding that there
would be integrated operation and maintenance of the Crossrail
system as a whole as part of a national network as well as responsibility
for safety and matters of that kind. We understood responsibility
as infrastructure manager meant responsibility as infrastructure
manager as commonly understood for all the regulations that Mr
Berryman was referring your Lordships to last Tuesday. We submit
it would be the antithesis of joined-up responsibility and control
to separate safely from maintenance and maintenance from operational
control. They all lie at the kernel of the delivery of a safe
and effective system. We would submit to take a different approach,
my Lords, would be to put that whole process in reverse with dire
and essentially unwarranted implications for the network as a
whole. My Lords, I want to use my language carefully here, but
we do feel that we have been misled, if not let down, by what
has emerged over the last few weeks and what seems to us to be
reneging on what was an important and, we believed, a common understanding
at least last year and through the early part of this as far as
we were concerned. I need to explain that to your Lordships. Could
I take your Lordships to tab 7.[6]
My Lords, Network Rail from the outset has been proactive in our
support for the Department in identifying ways in which this scheme
can be implemented satisfactorily and before proceedings in another
place we entered into this document, the Statement of Principles,
agreed on 4 November 2005 and for present purposes paragraph 22,
that is the third page, my Lord. It was at least agreed, 22: "the
parties agree that the Crossrail project should in its entirety
be managed from a single point of responsibility and acknowledge
that the duties and obligations of Network Rail should be fully
respected". I understand at that point we were way apart
on the proper approach to operation and maintenance, but at least
we got the acceptance of single responsibility and management.
9241. LORD SNAPE: Mr Purchas, forgive
me for interrupting you. On 22 you said, "single points of
responsibility and", but it actually says, "single points
of responsibility but". Is the "but" not more significant
than the "and"?
9242. MR PURCHAS: My Lord, your Lordship can
imagine that sentence went through all kinds of convolutions and
discussions. It was entirely unsatisfactory and incomplete. When
we appeared in the other place we had a number of points, two
major points. One was simply we did not even have the start of
an Access Option timetable from the Promoters and the second was
the very point regrettably I am still troubling your Lordships
with, which is fragmentation. My Lords, with grateful thanks to
the Committee, whose Chairman's words were little veiled, we got
after that appearance real activity, which we were grateful for,
which enabled the Access Option to come forward and we took a
second House undertaking. On fragmentation we thought last July
really the matter was fully settled and understood between us,
I will come to that, but your Lordship is absolutely right, behind
that paragraph lies a great deal of discussion and negotiations
which simply had not resulted in a situation which could be acceptable,
we believe, to your Lordships or, indeed, to ourselves. My Lord,
can I move on from there—
9243. CHAIRMAN: Before you do, Mr Purchas,
presumably this issue goes to the question of PPM?
9244. MR PURCHAS: Everything.
9245. CHAIRMAN: What did the regulator
assume for the purposes of their final decision?
9246. MR PURCHAS: My Lord, we have absolutely
no doubt, I am going to show your Lordships, if I may, what Mr
Fuhr on behalf of the Department said to the regulator and what
Mr Robin Gisby did. Mr Robin Gisby will tell you, as I understand
it in any event, that if he had known then what he knows now,
he certainly would have made clear that what he was saying was
on the basis that Network Rail would have integrated responsibility
for both the operation and maintenance of the whole system. My
Lord, I was going to come to that just in a moment.
9247. CHAIRMAN: Good.
9248. LORD BROOKE OF ALVERTHORPE: Just
before we leave that, if I may, does 22 not mean that conceivably
you could have one party running it but not Network Rail?
9249. MR PURCHAS: As I said to Lord Snape, it
was entirely unsatisfactory to us but we actually still want to
help produce a railway that is going to work, that is why we are
here, we are seeking to assist the Promoters as best we can and
at that stage we thought it important to have a Statement of Principles
as far as we could get. We like to think that with the assistance
of the Committee in another place we certainly made progress in
terms of bringing forward overall regulation of the system, but
we now find we have not made progress on fragmentation. Can I
take your Lordships then to the next document and it is tab 8,
my Lords. My Lords, as part of the discussions with the Promoter
on the Access Option we understood it was accepted that we should
indeed be the operator and maintainer of the whole network. That
was put into a formal text on 18 July 2007.[7]
It is signed by both Mr Fuhr on behalf of the Department and Peter
Hendy for TfL. "In June 2006 it was confirmed that the Department
for Transport (`DfT') and Transport for London (`TfL') together
acting as project sponsors share the view that Network Rail can
act as Infrastructure Manager for those parts of the Crossrail
route that will run on the existing Network Rail network (`On-Network
Works')", unqualified and we will come to definitions in
due course, plainly operator and maintainer. "Since last
summer discussions have taken place about the role of Infrastructure
Manager for that part of Crossrail Route which is not on Network
Rail's network (`the Crossrail Central Section'). As part of those
discussions, we have considered the safety duties and other responsibilities
which are set out in ... (`ROGS') in relation to Crossrail".
Indeed there were discussions about all kinds of things, including
safety. "The Sponsors have now concluded that Network Rail
will be the Infrastructure Manager for the end to end Crossrail
rail systems during operation and agree that all appropriate steps
should be taken to enable Network Rail to assume the role as soon
as reasonably practicable, and any event by 1 December 2007".
Could I tell your Lordships at the moment that the term "infrastructure
manager" is a technical term. If we need to go into definitions
we can. It is used for access, management and safety. It is understood
in the railway industry and under the 2005 regulations for access
and management, and the 2006 regulations for safety and it means
the person who operates and maintains, not the owner, the person
who is there with nuts and bolts and the spanner and the rest
of it. So, my Lord, as far as we were concerned that was plain
and negotiations then proceeded for a number of—
9250. LORD JAMES OF BLACKHEATH: May I
ask a question, please? You will be familiar with the recently
activated Corporate Manslaughter Act. How far is that now going
to leave a completely unambiguous responsibility to answer any
proceedings under the Corporate Manslaughter Bill?
9251. MR PURCHAS: That is a very good question,
my Lord, and I would hesitate to answer that now. I am certainly
not going to ask Miss Kabir-Sheikh to give the answer.
9252. LORD JAMES OF BLACKHEATH: It is
a hugely important question.
9253. MR PURCHAS: It is a hugely important question,
my Lord.
9254. LORD JAMES OF BLACKHEATH: It is
an area of activity which has prompted the Act in the first place,
because of Hatfield and other events. If the issue is allowed
any ambiguity there will be chaos from that Act.
9255. MR PURCHAS: My Lord, can I say this, which
is not answering the legal point your Lordship put to me: safety
of our railways depends upon integrated operation. They depend
upon how the railways are handled. They depend upon maintenance—not
simply to have standards but to ensure that maintenance is planned
and that it is done. That is what lay behind the 2004 White Paper.
There have been tragic examples where systems have fallen down.
As your Lordship will see from what TfL have been saying to the
Department, they actually want to put safety and maintenance of
this part of the system on to a commercial basis. So we are back
into the sort of Hatfield era, if I may say so, rather than having
it dealt with through an operator/manager where maintenance is
our direct responsibility, and we deal with it on an integrated
basis along with operation. My Lord, it is something of great
concern.
9256. LORD JAMES OF BLACKHEATH: Throughout
the Committee stages of that Bill, I was challenging the Attorney
General and the others very seriously as to the lack of focus
as to where the responsibility would lie. As it was inspired by
railway accidents I think it is quite ridiculous if we do not
have a very clear definition of the responsibility in any arrangements
for safety that come here.
9257. MR PURCHAS: My Lord, I can give you that
answer straightaway, and it is this: as the infrastructure manager
under the European Directive and under the regulations, we are
directly responsible for safety.
9258. LORD JAMES OF BLACKHEATH: Who goes
to prison?
9259. MR PURCHAS: My Lord, there I am
going to hesitate, but it will be a liability both on the company
and, also, under the Bill, it will be on the individuals.
6 Committee Ref: A54, Statement of Principles agreement
between DfT, CLRL, TfL and Network Rail, 4 November 2005 (SCN-20080430-009) Back
7
Committee Ref: A54, Extract from correspondence between DfT and
TfL to Network Rail, 18 July 2007 (SCN-20080430-010) Back
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