Examination of Witnesses (Questions 9660
- 9679)
9660. Indeed, as I shall explain shortly, the
undertaking we seek on infrastructure provision is intended to
ensure that Crossrail does achieve its anticipated opening date
and does so with the passenger train paths conditionally allocated
to it by the ORR in his recent Access Option decision. EWS, along
with other railway interests, were at some disadvantage before
the Select Committee in another place because of the uncertainty
as to what form of regime was going to govern the construction
and operation of Crossrail. Was it to be the, to us, offensive
railway clauses or, on the other hand, was it to be an Access
Option? If the latter, what were the terms of that Access Option
going to be? It was therefore probably inevitable that relatively
few conclusions were reached by the Select Committee in the other
place on the issues which had been raised, in particular, for
instance, with regard to capacity and compensation. Speaking at
the report stage of the Bill in the other place, on 13 December
2007 at column 559 one of the members of the Select Committee,
Sir Peter Soulsby, said this: "Freight was one of the issues
to which the Select Committee drew specific attention in its report.
We said we expected there to be continuing discussions about the
impact of Crossrail on freight, both east and west of the capital,
and we hoped it would be given further consideration so that when
the Bill is debated in the other place sufficient reassurance
can be given that the vital interests of freight will be protected
as Crossrail comes into operation".
9661. Matters have now moved on and EWS welcomes
wholeheartedly the promised removal of the railway clauses and
were pleased that the Department feels able to accept an Access
Option which gives them a little less than they ideally have wanted.
It is gratifying to find that our own suggestion that the wording
in the Olympics Bill should be followed, for the duty on the ORR
has indeed now been adopted. So far so good. Though we regret
the precedent that has now been set of tabling the revised railway
clauses of the Public Bill Committee stage rather than now, we
are grateful to have had sight of the drafts last week, it being
still our hope that the Promoters can commit to not altering these
in a way that could be damaging to private interest that can only
fight their ground before your Lordships' Committee.
9662. What do we now seek, and there are three
issues which I mention in no particular order of importance. First,
there is the question of arbitration concerning railway assets.
If your Lordships would turn to clause 40 of the Bill, perhaps
that could be put on the overhead projector.[50]
We can see the need for clause 40 which has got a very specific
but important function of providing a mechanism for reconciling
disputes in the case of certain railway assets. What we cannot,
however, understand is the need for clause 41(3).[51]
We are underwhelmed by the argument set out in the Department's
letter to Lord Berkeley of 24 April 2008, which was page 46 of
the rail freight bundle, which your Lordships had yesterday. That
said this: "The object is to ensure that neither the nominated
undertaker nor the asset controller can act unreasonably in dealing
with a problem relating to the interaction of the Crossrail works
with overland or underground railway assets."
9663. That reasoning, as it seems to us, is
entirely fallacious, for it assumes that the appointed arbitrator
(who is referred to in clause 43) would act unreasonably were
it not for clause 41(3). The whole purpose of having an arbitration
by a qualified person is to provide a fair and reasonable result.
There is simply no need, we say, for clause 41(3) giving the Secretary
of State the power, on request or otherwise, (in other words,
either when requested or on his own initiative) to direct the
arbitrator as to precisely what result the arbitration is to achieve.
9664. The proof of the pudding, as it were,
lies in the precedent for clause 40, which was section 37 of the
Channel Tunnel Rail Link Act 1996. If I could ask your Lordships
to turn to tab 28 in the bundle of EWS exhibits and ask, please,
that section 37 of the Channel Tunnel Rail Link Act be put on
the screen, your Lordships will straightaway see that section
37 has exactly the same section heading as does clause 40—"Duty
to Co-operate"—and that it then contains five clauses
which are in virtually identical terms to the sub-clauses in clause
40 of the Crossrail Bill.
9665. In particular, your Lordships will note
section 37 sub-section 3 in the Channel Tunnel Rail Link Act which
provides: "The terms of an agreement under subsection (1)
or (2) above shall be such as the nominated undertaker as the
operator of the asset may agree or, in default of agreement, as
may be determined by arbitration." What is wholly lacking
from the Channel Tunnel Rail Link Act is any equivalent of clause
41(3) which has crept into the Bill which is before your Lordships.
All there was in the Channel Tunnel Rail Link Act was section
43.[52]
If I could take your Lordships on to that, that is a wholly neutral,
normal provision, headed "Arbitration". "Where
under this Part of this Act any difference is to be referred to
arbitration, the difference shall be referred to, and settled
by, a single arbitrator ... ", and the Secretary of State
was given the power to make provision about procedure but not
about the result of the arbitration.
9666. Now the CTRL has been built, we are unaware
that that provision contained in clause 37 with its arbitration
clause and with section 43 gave rise to any problems whatever,
and entirely lacking in anything that we have seen is any explanation
as to how clause 41(3) has crept in, unannounced as it were, to
the present Bill. We would invite your Lordships to show it the
exit fairly fast. Clause 40 can stay. If Mr Elvin says that they
require an additional provision dealing with the form of the arbitration
then that could come forward without any problem, but then there
is a precedent for it in the provision to which I referred your
Lordships in the CTRL Bill.
9667. It rather sounded yesterday as if Mr Elvin
was struggling to conceive why clause 40 itself was needed at
all, but I emphasise that we are not disputing clause 40; what
we hope is that clause 41(3) can go, as it surely ought to go.
9668. MR ELVIN: I am sorry to interrupt
my learned friend. I have had some difficulty, having just had
the bundle of exhibits at a fairly late stage, in finding, in
the Petitioner's Petition, any reference to these provisions.
I am sorry to take a procedural point, but the EWS Petition, in
a very careful way, goes clause-by-clause through the provisions
that are objected to.
9669. CHAIRMAN: There was another Petition
that raised this question.
9670. MR ELVIN: Indeed, it was the MEP's
Petition last week that raised it and she indicated she was not
pursuing the point through her Agent. If you look at this Petitioner's
Petition, it goes carefully through paragraph 76 onwards, and
although it says "We are concerned about the existence of
clauses 22 to 45" there is then no specific issue raised
with regard to clauses 40 and 41. I just wonder if my learned
friend could assist.
9671. CHAIRMAN: I thought that you were
going to deal with this group of clauses anyway.
9672. MR ELVIN: I am, but I really would
like to know where Mr George says his Petitioner is entitled to
raise this matter.
9673. CHAIRMAN: I have raised 41(3) myself.
9674. MR ELVIN: Indeed.
9675. CHAIRMAN: Sooner or later we will
have to have a statement, I think, from the Promoters on it.
9676. MR ELVIN: Indeed.
9677. MR GEORGE: My Lord, it is very
simple; it is paragraph 76, the first sentence: "Your Petitioners
are concerned about the existence of clauses 22 to 45 in the Bill."
We later set out the provisions which caused us most concern.
Fortunately, the ones which caused us most concern you are now
volunteering to withdraw, but one is left with this one. It is
only a very small provision but we raise it, and it is plainly
covered by our Petition.
9678. MR ELVIN: I hear what Mr George
says. I do not follow him at all because the letter that was written
to us by EWS before today sets out all the clauses they wanted
amended, and it did not include these clauses. I do not understand
them to be objecting to other clauses that they have not mentioned
specifically, but there we are.
9679. MR GEORGE: That is all I want to
say about that point. I hope the point seems pretty clear.
50 Crossrail Bill, Session 2007-08, HL Bill 14, Clause
40 (SCN-20080430-050) Back
51
Crossrail Bill, Session 2007-08, HL Bill 14, Clause 41(3) (SCN-20080430-051) Back
52
Committee Ref: A57, Channel Tunnel Rail Link Act 1996, Clause
43 (SCN-20080430-051) Back
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