Examination of Witnesses (Questions 9340
- 9359)
9340. LORD SNAPE: Again I understand
that but this is not a new project, it has been around since the
late 1980s. This is a fairly fundamental question and here we
are at the fag end of the parliamentary procedure and still no
resolution to this dispute.
9341. MR ELVIN: My Lord, that is right
and I understand your Lordship's position on that but we are where
we are in terms of what TfL and Network Rail are saying to us
and they are saying different things. Do not forget as well in
this context that funding was only secured for this project in
October of last year. The funding position has remained uncertain
for the majority of the passage of the Bill through the Commons
and it was only at the closing stages that the funding mechanisms
have been resolved. It therefore has brought those issues into
sharp focus, particularly since as part of that issue TfL has
committed itself to a significant injection of funds as its part
of the capital investment. One can see therefore that TfL has
a point of view. Whether the Secretary of State agrees with that
or not is still a matter which is on-going in the discussions.
We have, as I have already said, considerable sympathy for Network
Rail's position and Network Rail holds an important card in that
we have to operate the access option to get access to and from
Network Rail's main network but we have to conclude that process
and I hope your Lordships will understand the difficulty that
the Secretary of State is in in this situation.
9342. LORD SNAPE: Did TfL attach any
conditions to their proposals for funding?
9343. MR ELVIN: Not that I am aware of
but I really do say "not that I am aware of".
9344. CHAIRMAN: I think you will find
that members of the public who are potential users of Crossrail
will be very concerned about the maintenance of the track in the
central tunnel.
9345. MR ELVIN: My Lord, we are all concerned
to ensure proper maintenance and safety. There is no doubt that
Mr Purchas's starting point is common ground between us.
9346. CHAIRMAN: Is there any way in which
it is going to be resolved while this Bill is in Parliament?
9347. MR ELVIN: My Lord, I have said
already I think it is unlikely.
9348. CHAIRMAN: While the Bill is in
Parliament?
9349. MR ELVIN: I think it is unlikely.
If Royal Assent—and I understand there is a possibility
we may get to Royal Assent before the summer—is before the
summer, I suspect the answer is no. Can I say this though: the
question is not that there should be proper safety and maintenance;
the question is do Network Rail get it by being infrastructure
manager under the access regulations or do they get it by contract
from TfL. It is not about who does it; it is how the financing
of that is structured. That is all this is about: what is the
mechanism for delivering the safety and who pays. That is what
this dispute is about. It is not about achieving safety and maintenance;
it is a question of which is the right mechanism to achieve it.
9350. LORD JONES OF CHELTENHAM: Chairman,
I am a little perplexed as to how this document came into being?
How did Network Rail get hold of a copy of this when it seems
to be a punt by TfL to bid for some business?
9351. MR ELVIN: I am sure Mr Purchas
will have plenty to say about what I have just said but I say
again it is TfL's bid and no more; it is not the Department's
view.
9352. LORD BROOKE OF ALVERTHORPE: If
I may, I am trying to understand the consequences. Could I just
go back to paragraph 10 and seek some clarification on that.[17]
What would be the consequence, Mr Purchas, if Network Rail was
no longer responsible for capacity allocation?
9353. MR PURCHAS: My Lord, so far as
capacity allocation, perturbations, a matter of that kind, if
I can look at that, that is critical to the operation of the network
as a whole and it is those sorts of moments and that in itself—and
Mr Gisby will explain much better than I—is the interface
between changes in operations and allocation of capacity on a
day-to-day basis is very closely connected with safe operation.
My Lord, can I come back—
9354. CHAIRMAN: You must be allowed to
go on.
9355. MR ELVIN: I am sorry, I had not
intended to be so rude but your Lordship asked me questions and
I was only trying to clarify to Mr Purchas what the status of
the TfL document was.
9356. MR PURCHAS: May I start with Lord
James' question if I may. My Lord, it was emailed to us by the
Finance Director, Mr Allen Stephen of TfL, copied to various other
members of TfL and London Rail, on I think I said 9 April—actually
it was 10 April at 8.54 and I will give a copy to Mr Elvin. It
says a copy of the paper we sent to the Department on regulation
of Crossrail, so certainly TfL seem to regard it as relevant as
to the situation. My Lord, I had not quite finished going through
the documents and you may see how far apart the Department is
from what seems to be the TfL agenda. That is where it came from
and, as I say, we will have it copied and then provided if we
may. Can I then come to the fundamental flaw which runs through
the recent letters, and I mean those of the last few days. What
we seek is nothing whatever to do with charging for access rights.
It is nothing to do with that. I showed your Lordship regulation
12 of the 2005 regulations. Under those regulations we charge
for operating and maintaining through the ORR for that service.
That leaves entirely apart what arrangements are made by TfL and
others for consideration for access rights or what the Department
may negotiate through tender for franchises. It is a fallacy and
it is wrong in law to say that the two are necessarily connected;
they are not. From the European Directive and the 2005 regulations
it specifically establishes separate regimes and ensures that
what we charge for as operator and maintainer we get paid for
at the rates approved by the ORR and we use that for our business,
which is operating and maintaining the network. If the Department
has been advising itself that is all connected with recovery of
the capital costs of this scheme, they have been misadvised and
are wrong in law.
9357. MR ELVIN: I did not say that, Mr
Purchas.
9358. MR PURCHAS: I am going to continue,
with your Lordship's leave, notwithstanding the assistance from
my right, for which I am always grateful. I am very glad they
are not saying it because it is quite unhelpful of my learned
friend to suggest that it has to wait on negotiations by TfL with
whoever—I do not know who they are going to negotiate with
about where the money for this comes from. We are told it has
been secured in capital terms and funded and the ORR has been
satisfied with 30 years access options.
9359. My Lord, can I make a third point on what
my learned friend has said a little earlier this morning and it
is this: he says the Department is piggy-in-the-middle. My Lord,
that is not essentially the position, is it because we understand
that your Lordships have control over the specific interests one
of which is Network Rail's and your Lordships can determine what
is appropriate, and if your Lordships take the view that the operation
and maintenance of this system should be on an integrated basis
and should proceed on the basis of the regulations that have been
passed through Parliament, the 2005 regulations, your Lordships
are able to do that. They leave entirely intact any negotiations
on capital matters that TfL or anyone else wants to carry on.
My Lords, that is what we ask your Lordships to take the responsibility
for, which is your Lordships to ensure that the safety and maintenance
and operation of the system in practical terms is properly secured
in the public interest. Your Lordships can do it and we respectfully
submit your Lordships ought to do it now.
17 Committee Ref: A54, TfL-Regulation of the Crossrail
Central Tunnel Section, Control of Network Rail activities (SCN-20080430-023) Back
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