Examination of Witnesses (Questions 9300
- 9319)
9300. MR PURCHAS: If it is going to help your
Lordships, we will deal with that later this morning. It is a
document from Transport for London to the Department.[15]
I will come back to it with Mr Gisby but for the moment can I
take your Lordships to paragraph 10. This is the bid from TfL
to the Department. "Control of Network Rail activities: It
has been agreed that Network Rail will be the Infrastructure Manager
for the end-to-end Crossrail services for the purpose of Railways
and Other Guided Transport Systems Regulations." That is
the qualification that is being added in. "TfL believes that
the Department shares TfL's view that Network Rail's role as Infrastructure
Manager will be limited to the application of the ROGS. TfL has
not agreed that maintenance will be carried out by Network Rail,
or that Network Rail will be responsible for capacity allocation.
On the issue of maintenance of the central tunnel section, TfL
believes that it has been agreed in principle with DfT that TfL
will manage the regime and that maintenance will be carried out
on a commercial basis, i.e. there will be a commercial contract
for maintenance services that may be carried out by Network Rail,
subject to performance incentives." Your Lordship will see
the stark contrast between that and what the Government has been
seeking, and successfully seeking, to secure since 2004 through
the rail industry and ensuring that negotiations by TfL and anyone
else on a commercial basis for the safety of the system is really
inappropriate on the rail network.
9301. My Lord, it goes on if we go to paragraph
14 at the bottom to "Exemption of the Crossrail tunnel section
from regulation under the 1993 Act".[16]
This is the first time we have actually seen this suggested: "In
the light of DfT's intention to withdraw the railway provisions—your
Lordships will recall the ORR's interim decision—"TfL
has considered how these concerns might otherwise be addressed."
(So we have lost that one, we will see if we can get it in through
the back door in some other way). "There are precedents for
the exemption of railways from regulation under the 1993 Act.
In addition to the LUL and DLR networks, both the Channel Tunnel
Rail Link and the section of line from Airport Junction to Heathrow
Airport owned by BAA are exempt from the provisions of the 1993
Act. TfL understands that BAA is anxious to retain its rail system
as an exempt network." Mr Gisby will show the differences
between those and what we are talking about with Crossrail in
the middle of the national network. "If an exemption from
the licensing and access provisions under the 1993 Act could be
granted for the central tunnel section"—and my Lord,
Lord Colville, referred to that and the power is there indeed
under the Act—"then this would address the issues identified
above and specifically offer certainty in order to assist the
establishment of a funding mechanism to deliver the required infrastructure.
This exemption could be achieved by amendment to the Bill or (and
this is the power to which I referred) by order under sections
7 and 20 of the 1993 Act." It goes on to talk about CTRL
being privately financed and then 17, and I will pick it up halfway
through if I may: "TfL as owner of the CTS would be able
to ensure that any usage rights for the CTS are consistent with
the regulated access rights over the national network. Certainty
of usage charges could be established to maximise the value of
the re-financing proposition. If third parties wished to use the
infrastructure, TfL would enter into commercial negotiations as
to terms." It is driven by commercial incentive. There is
nothing wrong with commercial incentive unless it is going to
imperil operation, maintenance and safety. "Network Rail
would exercise functions as Infrastructure Manager under the ROGS"—that
is just the safety regs—"but its role to provide timetabling,
train control and engineering access would be carried out under
contract. Other services could be unbundled with for instance
maintenance being contracted directly by TfL or through Network
Rail. The key point being that this would be at TfL's discretion.
The nature and extent of Network Rail's role would be controlled
through commercial negotiations as would its costs and performance."
One might ask where does the ORR fit into all of this. Perhaps
I will just read paragraph 20—
9302. CHAIRMAN: Would you just go on
to tell us about the access and management regulations because
I am not sure how those fit in with the ROGS.
9303. MR PURCHAS: The access and management
regulations are the senior regulations. They provide for the management
of the network; they provide for charging through the ORR; and
they also provide for inter-operability. In other words, they
deal with the practical operation and access to the railway. They
are the senior regulations if you are looking to see who runs
this railway. The safety regulations also are effected by the
European Directive and deal specifically with the safety management
system which has to be in place to run a railway, or indeed other
railway assets, and within that there has to be identified an
infrastructure manager who is ultimately responsible for safety.
But the non sequitur here is to suggest that the infrastructure
manager under one set of regs is for all the commercial reasons
it makes sense, TfL, being separated from the infrastructure manager
for the senior regs, the access and management regulations.
9304. CHAIRMAN: But does safety include
maintenance?
9305. MR PURCHAS: The standards of safety
will be those required under the safety management system. In
other words, within that system you will have the safe railway
but the responsibility we want for maintenance and operation,
who actually plans when the maintenance will be carried out, to
what standard, and on what basis, that is something that will
be normally looked for as the operator and maintainer, which would
be under the access and management regulations. But, my Lord,
this is the problem—
9306. CHAIRMAN: There is no statutory
provision which lays down who shall do it?
9307. MR PURCHAS: My Lord, to say who
will actually do it, the responsibility under the safety regulations
will be for a safe railway, but so far as the ability to deliver
that is concerned, we want that assurance that we should be the
operator and maintainer, and normally the network licence would
take into account whether you have suitable provisions in place
to ensure a safe railway. The conditions that would be imposed
are the sorts of duties that your Lordship has seen in our Petition
that have been summarised that are placed on us under our network
licence.
9308. CHAIRMAN: The safety must include
the maintenance?
9309. MR PURCHAS: My Lord, you are pushing
on a totally open door as far as we are concerned. The idea of
making us responsible as safety manager and whether we would be
prepared to be safety manager without actually having the ability
to deliver an integrated, safe and efficient railway system is
a very difficult one, and we for our part find it very disappointing
that for commercial reasons this should be the stance taken by
the Promoters in this Committee.
9310. LORD BROOKE OF ALVERTHORPE: Are
you saying that unless you could have full responsibility you
could not operate the safety regulations?
9311. MR PURCHAS: My Lord, at this point
in time—and this only emerged in the course of the last
few weeks and I mean that because although the document was provided
to us on 9 April it only filtered upstairs, or down the corridor
as I put it, rather more recently—we have asked the Promoters
three times for a straight answer on "Are we to operate and
maintain this railway?" The first time we got a clear "No"
was yesterday. That decision has not yet been taken but clearly
we have to consider very carefully whether you could responsibly
take on the safety of this system without having the operation
and maintenance of it.
9312. LORD SNAPE: Railtrack did that
for years, not particularly successfully, did they not?
9313. MR PURCHAS: My Lord, that was in
the unhappy days before the new White Paper.
9314. LORD SNAPE: They operated the regime
that you are now saying would not be satisfactory from the point
of view of your clients but that is how Railtrack operated.
9315. MR PURCHAS: And Network Rail came
into business to put that right under the new approach.
9316. LORD SNAPE: To put a stop to all
that.
9317. MR PURCHAS: To put a stop to it,
my Lord. My Lord, indeed—
9318. MR ELVIN: I wonder if I could help
Mr Purchas, at least to this extent, the document from TfL—and
I would like to see the way in which it was provided because that
may shed some light on it—is not a document which is endorsed
by the Department. It is TfL's bid to the Department just as much
as Mr Purchas is making his bid to the Department through your
Lordships as to what should happen. Although TfL says, "We
think the Department thinks this, we think the Department may
think that," it does not represent departmental policy; it
represents TfL's bid for power or bid for a position to the Department
and no more. Mr Purchas can rest assured that that paper does
not represent departmental policy.
9319. LORD SNAPE: Perhaps you could go
a bit further.
15 Committee Ref: A54, TfL-Regulation of the Crossrail
Central Tunnel Section, Control of Network Rail activities (SCN-20080430-023) Back
16
Committee Ref: A54, TfL-Regulation of the Crossrail Central Tunnel
Section, Exemption of the CTS from regulation under the 1993 Act
(SCN-20080430-023 to -025) Back
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