Examination of Witnesses (Questions 9440
- 9459)
9440. As I understand it, in this situation,
no one is in dispute that it is Network Rail that has the relevant
level of expertise to be responsible for these matters.
(Mr Gisby) Yes.
9441. You say that that leads, logically, to
your becoming infrastructure manager and controlling access.
(Mr Gisby) Yes.
9442. TfL says that could be regulated by contract.
(Mr Gisby) Yes.
9443. As I say, I am merely trying to show the
Committee where the dividing lines are. I am not expressing a
view because the Secretary of State has to take an independent
view based on considering the issues from both sides. However,
your position is that you have no experience of operating under
contract. TfL says they want to operate this by virtue of a contract
arrangement.
(Mr Gisby) I do not think anybody has any experience of operating
as TfL suggest. I also think it is important to recognise the
commitments and obligations I have to other operators under the
broader role of infrastructure manager, and the access allocation
that goes with that, and I do not understand, at the moment, how
I could do that where there is tracks and bits of network that
are used by Crossrail, TOC and my existing customers, if in one
case I am infrastructure manager with a broader definition including
access planning and capacity allocation and all the rest of it
and, in the other case, I am just operating under ROGS. I do not
understand how I could mesh those two together—not so much
in perturbation (that would be difficult enough) but in planning
timetables that then I become accountable for delivering.
9444. That will be the position you will advance
to the Secretary of State in due course.
(Mr Gisby) I do not understand how to do that.
9445. BARONESS FOOKES: Can I ask you,
Mr Elvin, rather than our witness; am I correct in thinking that
the Promoters of this Bill are the Secretary of State and Transport
for London?
9446. MR ELVIN: No, the Secretary of
State is the Promoter. TfL is only a co-sponsor of the project.
9447. BARONESS FOOKES: They are a co-sponsor?
9448. MR ELVIN: Yes, but the Secretary
of State still has duties conferred on her by Parliament under
the various legislative provisions. In order for TfL to obtain
what it would like, the Secretary of State would have to apply
for exemption under the Railways Act, and I am just going to explore
this with Mr Gisby in a moment. To do that, there would have to
be an industry-wide consultation. The Secretary of State of course
is legally obliged to consider a request to exercise the power
and that is the process that we are going through at the moment.
The Secretary of State has yet to reach a decision on that issue
which is why I am being very circumspect in not stating a final
position because it would be wrong to do so until those discussions
had concluded.
9449. BARONESS FOOKES: But "co-sponsor"
suggests equality, does it not, that term?
9450. MR ELVIN: Well, TfL do not have
a role in terms of applying for exemptions under the Railways
Act. That is the Secretary of State and the Secretary of State
alone, and she must, in doing so, not have regard to any irrelevant
or wrongful considerations and she must do so on the basis of
the legislation. She, therefore, having been asked to act by TfL
and to exempt the central section, has at least to consider whether
or not to exercise the power because that is what public law duties
require, she has to at least consider whether to exercise the
power. That is where we are at at the moment, but TfL's role,
such as it is, is no different from anyone else's. They can request
the Secretary of State to exercise the power and the Secretary
of State must exercise that power in the public interest and not
simply having regard to TfL's own wishes, and that is the process
that we are going through at the moment.
9451. LORD BROOKE OF ALVERTHORPE: So
if they accept that this could be regulated by contract—
9452. MR ELVIN: That is what TfL are
asking.
9453. LORD BROOKE OF ALVERTHORPE:—and
it has been accepted by the witness, Mr Gisby, that that could
be done, what would be the consequence of that? It would be you
or the Secretary of State who would be—
9454. MR ELVIN: I was going to do this
by asking Mr Gisby, but I am quite happy to do it directly and
he can tell you if I am getting this wrong.
9455. LORD BROOKE OF ALVERTHORPE: It
is very difficult for us to establish what the consequence would
be.
(Mr Gisby) Well, if it were regulated by contract, then TfL
would have to find a contractor. I do not think it would be me.
9456. MR ELVIN: I think Network Rail
are saying that they will not co-operate in those circumstances.
I am sure that will be an important part of the discussions that
are going to take place. TfL clearly think that Network Rail would
be the contractor and I am sure Network Rail are very capable
of putting forward their own point of view. I hope your Lordships
realise that I am not trying to be mealy-mouthed about my answers
to these questions, but I am in a genuinely difficult situation
where the Secretary of State has to make a decision in the public
interest objectively and cannot simply respond to this Petitioner
in the same way as we would normally do because she has duties
under the Railways Act.
9457. LORD SNAPE: She is so lucky to
have such a great air raid shelter, Mr Elvin!
9458. MR ELVIN: It is not an air raid
shelter, my Lord. Before your Lordships, it feels like a transparent
umbrella!
9459. BARONESS FOOKES: Mr Elvin, if I
can just follow this up, there is no obligation on Network Rail
in the circumstances described of this curious arrangement, as
I think it to be, they are under no obligation to pick up the
contract? They can perfectly well refuse to do so and, from what
one gathers, they probably would?
| 
