Examination of Witnesses (Questions 9500
- 9519)
9500. LORD SNAPE: We are!
9501. MR ELVIN: We are all paying for
it, I am sure, and some of us will be paying more than others,
depending on where we live!
9502. BARONESS FOOKES: Perhaps this is
the nub of it, Mr Elvin, that they are paying out a great deal
of money and, therefore, they think that that gives them a right
to meddle in matters where they have insufficient expertise.
9503. MR ELVIN: I cannot make it clearer
to the Committee that I am no happier to be in this position than
your Lordships are with my having to explain it to you, but it
is quite right that we do not control TfL. TfL have a legitimate
position and whether it has raised it late in the day because
funding was only finalised in October, I do not know, I would
be speculating, but the fact is that they have raised it. They
are a substantial player and as substantial a player as Network
Rail in delivering this project on time and in a way which will
meet all the public interest. We cannot simply treat them, if
I can characterise your Lordship, as any member of the public
writing to the Promoter; they are a substantial partner in this
project and we have to take what they say seriously. We have a
duty, a legal duty, to consider whether to exercise the power
they have asked us to exercise. Can I make it clear, and again
I have taken instructions on this carefully, that the Department
has not been convinced to date of the arguments that are being
put forward, but the discussions have not yet concluded and, therefore,
a concluded view cannot yet be given, but that is the position.
It really would be wrong for me to go any further than that and
say what the Secretary of State's position may or may not be.
We are going to involve ORR, we are going to involve Network Rail.
There will be a resolution to this and there has to be a resolution
to this because we have to link into Network Rail's network, we
have to operate the access option and we have to deliver this
project and works, if Royal Assent goes ahead, will have to begin
certainly within the year. So, my Lords, this is not a position
that I find an easy one to explain to your Lordships because I
have to tread carefully because the Secretary of State has public
functions to discharge under law.
9504. LORD BROOKE OF ALVERTHORPE: Nobody
likes to be railroaded!
9505. MR ELVIN: My Lord, I have tried
to avoid railway puns all the way through these hearings, but
that is the line I wish to take. I am sorry. Quite seriously,
we take very seriously what Network Rail has to say, we take very
seriously what TfL has to say, but your Lordships will forgive
me for saying this is a matter we have to resolve outside the
bill process. This is not an issue which arises under bill powers,
it is an issue which arises under the rail regulation provisions,
most of which have a European origin. We have to act under that
legislation, we have to reach a view, objectively listening to
all the parties and reach a view in the public interest. I can
understand that your Lordships and my Lady may wish to express
a view in your report, but I simply put that forward as being
our position and we must stick to it.
9506. CHAIRMAN: I think your former position
is perfectly correct and very well understood, but the fact of
the matter is in March one of the co-sponsors of this Bill has
changed an important factor in the building of the central tunnel,
in the maintenance and running of the central tunnel. It may not
be for this Committee to decide that, but it is certainly for
this Committee to draw the attention of Parliament to this situation.
9507. MR ELVIN: My Lord, I have no submissions
to suggest otherwise. Can I just say this: TfL has not changed
the position, TfL is only arguing that the position should be
what TfL now says it should be. It is an argument and a position
that has been put forward. We have yet to reach a conclusion and
if TfL's position is one which has to be followed through and
operated, it requires the Secretary of State to exercise exemption
powers under the Railways Act which requires a complex public
procedure to be carried out before the ORR. It is not TfL's decision
just as it is not Network Rail's decision, it is for the Secretary
of State. I say nothing to persuade your Lordships against making
whatever views your Lordships and my Lady think is appropriate
in the report, you will do, no doubt, what you think proper on
the basis of what you have heard, but I cannot say any more on
behalf of the Secretary of State for the reasons I have said.
My Lords, we seem to have morphed from my asking questions of
Mr Gisby to my making submissions. I would like at least to get
some points for the efficiency in doing that, because that really
is all I have to say on the subject.
9508. MR PURCHAS: Mr Gisby, stay there.
I might want to re-examine.
9509. MR ELVIN: If my learned friend
will forgive me also, that really is our position and I have nothing
to add to it in any other submissions.
9510. CHAIRMAN: And no further questions?
9511. MR ELVIN: I have certainly no further
questions for Mr Gisby.
9512. CHAIRMAN: Mr Purchas?
9513. MR PURCHAS: My Lord, there are
two matters I wanted to ask Mr Gisby to help the Committee on,
which is notionally re-examination or you probably recall—
9514. CHAIRMAN: We have had a somewhat
unusual intervention and I think you are allowed to do the same.
9515. MR PURCHAS: Could I re-morph. The
first point is this, if you go back please, Mr Gisby, to tab 22
and you will recall you were being asked at some length about
what TfL wanted to achieve, do you recall?
(Mr Gisby) Yes.
9516. Your attention was drawn to that, although
chiefly in cross-examination, of the splitting up of the system
of commercial contractors. I want to know is that a system that
will work?
(Mr Gisby) I have to say I do not know. I have no experience
of it. Sorry, are you referring to splitting up contractors?
9517. Yes, from the responsibility for safety
and operation and maintenance.
(Mr Gisby) Certainly not. It did not work terribly well,
as we all know, in Railtrack's days. If you go beyond that and
disconnect the letting of the maintenance contract by one organisation
from the operation of another, certainly in my professional judgment
that is a place you do not want to go at all.
9518. The second point I want to ask is simply
on the regulations. This is the 2005 regulations. The undertaking
you have sought from the Promoters and you seek through this Committee
in tab 1 is an undertaking that Network Rail will have responsibility
for and control over the operation and maintenance, do you recall
that?[36]
(Mr Gisby) Yes.
9519. It is pointed out to you that, although
infrastructure management is dealt with under part 3 and part
4 enables you to charge under regulation 12 for that management,
part 5 deals with capacity allocations which will include not
just perturbations but allocation in the sense of access rights?
(Mr Gisby) Yes.
36 Committee Ref: A54, Undertakings sought by Network
Rail (SCN-20080430-001) Back
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