Examination of Witnesses (Questions 9260
- 9279)
9260. LORD JAMES OF BLACKHEATH: You are
not going to get anybody to do the job unless they know whether
they would be liable to go to prison in the first place. I think
there are some good questions to ask.
9261. MR PURCHAS: My Lord, there are indeed.
Can I pick up your Lordship's point in this sense: that to make
someone infrastructure manager for safety but not to give him
the control and responsibility for maintenance is a complete non
sequitur, we would say.
9262. LORD JAMES OF BLACKHEATH: The example
I have been trying to get the Attorney General to comment on is
what happens if a jockey gets killed because there is a faulty
fence which was not corrected on a racecourse, and they have got
seven choices they cannot decide, going from the senior steward
at the Jockey Club down to the head groundsman, at the moment.
9263. MR PURCHAS: My Lord, I can see exactly
the same problems arising. We think a good start for safety will
be to have one identifiable body, Network Rail, as the operator
and maintainer for the whole network. That is really the point
we make.
9264. LORD JAMES OF BLACKHEATH: If you
have any further thoughts on it I think it would be helpful to
know.
9265. MR PURCHAS: My Lord, I am very grateful
for that invitation, thank you. I was just telling your Lordship
that following 18 July, we were in discussion, we thought, on
an entirely positive and common understanding that we were going
to be operator and maintainer. That is well-illustrated at tab
9, my Lord.[8]
This is actually part of what was an agreement that had gone through
all the negotiations; it had gone through the lawyers and it was
actually engrossed—it was sitting there waiting to be signed
by both sides. You will see included within it is Schedule 5.
"Brief. It is intended" (as agreed between both sides
of the negotiating teams) "that Network Rail will become
progressively more responsible for the design, construction, commissioning
and testing of the On Network Works and subject to the Approved
Assurance Regime will assume the position of Infrastructure Manager
(rail infrastructure) for the Central Core Area of the Crossrail
Route.
9266. "It is intended, subject to various
other future agreements, that once the Central Core Area of the
Crossrail route is fully commissioned and operational, Network
Rail will assume the role of network operator and maintainer.
This Brief defines the joint objectives the parties have in preparation
for the Execution Phase of the Crossrail Project."
9267. Entirely consistent: infrastructure manager
used in the usual way. We signed that on 11 December and it went
as a matter of formality to TfL and the Department to sign. It
was on the background of both our understanding of what had been
written to us the previous summer and that agreement, which we
had not had back signed but it had been effectively agreed, that
we appeared before the ORR, which, my Lord, Lord Chairman was
asking earlier—or my Lord, Lord Snape. My Lord, we have
extracted parts of these proceedings at tab 11.. The Access Option
application was made jointly by us and by the Department on the
basis that we would, indeed, be the operator and maintainer, or
infrastructure manager.
9268. If your Lordship has the first page, page
9 of the extract, we have Mike Fuhr there.[9]
He is Director of Major Projects. You will see, in the third complete
paragraph: "I am particularly glad today to be joined by
TfL, who are co-sponsors of Crossrail, both now and in the pre-construction
phase and throughout the whole of the construction phase will
continue to be co-sponsors, and by Network Rail, who are a key
delivery partner for the Crossrail project and its operation once
it has been constructed."
9269. Then it goes on to refer to Network Rail's
role. One comes over the page, my Lord, to page 10. Your Lordship
will see, at the top of that page: "As a result, the security
of the access rights which Crossrail will require are vitally
important because, like any other project which needs to be able
to remunerate its investment, the ability to deliver the operation
of the railway is key to that investment being justified."
It goes on to refer to the role of the ORR, which I understand
is accepted by the Promoters.
9270. "Now, it is for the ORR eventually
to judge whether we have got the balance right under its general
duties, taking account of the interests of all users and taking
account of its duty to promote the railway network to the greatest
extent that is economically practicable. We would like to think
that we have sought to secure that balance as best we can."
9271. Mr Gisby then took up the evidence, as
it were, on page 13, which is at tab 12. My Lord, this is 1 February
this year. Mr Gisby introduces himself, Director of Operations
and Customer Services, and says: "I am here because that
function within Network Rail covers several very important areas
relevant to today and the access option and so on before us. It
covers the timetabling process itself; the offer and agreement
of track access contracts between ourselves and the train operators;
it involves making it all work when it actually is operating,
and delivering the outputs that are expected from this development
and other things already existing across the network.
9272. "I would like to thank Mike for what
he said and echo some of his words ... an excellent step forward
... Crossrail, I believe, is a very important and welcome investment
for railways within London. It also, I think, pushes Network Rail
further forward into other things that we will be doing anyway
across the network, in increasing capacity, seeking to run more
services and developing more of what is colloquially known at
the moment as a seven-day railway, but, certainly, a railway that
is much more intensive in its operations, has much higher levels
of performance than perhaps we have been used to and operates
much more around the clock; at weekends and so on.
9273. "As everybody is aware, this will
be a section 18 application, so, to assure ourselves that we can
support it, we have undertaken a wide range of systems modelling.
That does show, as everybody, I am sure, in the room is aware,
that there are a number of issues still to be resolved, but we
are confident that we have not identified anything in that modelling
yet to date that could prevent us from delivering the project
requirements alongside the existing and future needs of other
users of the railway network."
9274. My Lord, I must be clear that technically
those access options were for the network outside the tunnel because
the tunnel does not exist. However, my Lord, it does not really
take a great deal of imagination to appreciate that the two are
absolutely intertwined; you cannot have one without the other.
It is quite clear, in our submission, that there was no suggestion
at that stage that Network Rail should be acting otherwise than
as infrastructure manager. I have no reason to think that Mr Fuhr
thought anything else; I am not suggesting he was deliberating
sitting there keeping mum—there is no suggestion of that
kind—and certainly not to the ORR.
9275. My Lord, if I then go on, please, to tab
13, by the middle of February we were a bit conscious we had not
had the agreement back signed.[10]
We thought there might be the sort of normal time-lag in these
things, so we wrote a letter saying: "Can we please have
it signed back?" It was following that that we were informed,
for the first time, on the telephone, on 19 February, that TfL—and
I do just note that—TfL were not prepared to sign the agreement
because it included a reference to maintaining and operating the
whole system—the one I have shown your Lordship. We were
told that on the telephone.
9276. That was followed (we got it on 3 April)
by a somewhat Delphic response from the Promoters (I say "Promoters"
but, to be absolutely clear, this is the Crossrail team). That
is at tab 14, my Lord.[11]
So we got this on 3 April. He said: "As you are probably
aware" (well, we had been telephoned on 19 February) "we
have not been able to obtain board authorisation to permit us
to sign the agreement." (This agreement had been agreed.)
"I doubt that such authorisation will be forthcoming before
we have satisfactorily resolved the issues relating to maintenance
of the central tunnel section." No one told us that those
issues were about maintenance. One notes it is coming from the
"board" level; this is not those who were involved in
actually negotiating the practical agreement. That was the first
hint we had.
9277. Contemporaneously with that, my Lord,
we got the response to our Petition to your Lordships' House,
and that is at tab 15.[12]
It is perhaps worth looking at. "In July 2007 the principle
was agreed between the Promoter, Transport for London and Network
Rail that Network Rail will act as Infrastructure Manager for
the end to end Crossrail rail systems during operation—in
other words, the entire Crossrail route ... ", and so on.
So far, so good.
9278. "It was agreed that all appropriate
measures should be taken to enable Network Rail to assume the
role as soon as reasonably practicable, and discussions have been
ongoing since then, focusing on Network Rail's input in relation
to the design and construction of the Crossrail central tunnel
section." Just pausing there, that is unqualified, infrastructure
manager, in the usual way, as far as one understands.
9279. Then: "These discussions between
the Department for Transport, Transport for London and Network
Rail have recognised that there will be a commercial aspect to
the detailed arrangements that will allow Network Rail to take
on the role of Infrastructure Manager, as Network Rail will not
own the central tunnel and its associated infrastructure."
I am going to come back to that because it is bad in law and it
is also contrary to the facts of the situation.
8 Committee Ref: A54, Extract from Network Works Development
Agreement, Schedule 5-Brief (SCN-20080430-011) Back
9
Committee Ref: A54, Office of Rail Regulation hearing on the
Crossrail Track Access Option Application, 1 February 2008 (SCN-20080430-012
to -016) Back
10
Committee Ref: A54, Extract from correspondence between Network
Rail and CLRL, 15 February 2008 (SCN-20080430-017) Back
11
Committee Ref: A54, Extract from correspondence between CLRL
and Network Rail, 31 March 2008 (SCN-20080430-018) Back
12
Committee Ref: A54, Extract from Promoter's Response Document
to Petition No. 110-Network Rail Infrastructure (SCN-20080430-019) Back
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