Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 9840 - 9859)

  9840. MR ELVIN: The ORR.

  9841. LORD JAMES OF BLACKHEATH: Would there be a point of reference to it to get that consent before?

  9842. MR ELVIN: My Lord, the way this process goes is that there is now a lengthy process by which the directions are worked up and the final agreement is approved by the ORR. If the terms of the agreement are not met, then the access options cannot be exercised, so the policeman, as it were, is the ORR, but the watchdogs will also include the industry if they are not satisfied that the terms are being met.

  9843. LORD JAMES OF BLACKHEATH: The incentive to cut a corner or take a shortcut for a cost saving for the Promoter in this particular respect must be considerable, and if the ORR is wholly dependent upon the Promoter to present the case, how do we know that case is fully and openly being disclosed at that stage?

  9844. MR ELVIN: The ORR is not totally dependent upon the Promoter.

  9845. LORD JAMES OF BLACKHEATH: We need to know more about this, you are making us very nervous.

  9846. MR ELVIN: The point your Lordship makes would apply to any rail project, of course, because for any access option on the network the ORR has to ensure that the terms are met, but the true policeman is the infrastructure manager responsible for safety and maintenance. You have already seen in the ROGs we looked at yesterday there is a specific duty on the infrastructure manager in relation to a safety management plan, which includes day-to-day maintenance and safety and emergency procedures as well, so there is a duty on the infrastructure manager which is then enforceable under ROGs. You are not dealing with just one layer of security here.

  9847. LORD BROOKE OF ALVERTHORPE: What would happen—it may seem in contradiction with what I was saying about the western element of Crossrail yesterday—if you decided you wanted to run more trains?

  9848. MR ELVIN: We would have to seek a new access option.

  9849. LORD BROOKE OF ALVERTHORPE: What is the guarantee that that is available for rail freight?

  9850. MR ELVIN: The same as anybody else, my Lord, which is we have to persuade Network Rail and then we have to persuade the regulator, which includes a mandatory consultation with the industry.

  9851. LORD BROOKE OF ALVERTHORPE: If there is only the existing infrastructure available, somebody down the line has to suffer that.

  9852. MR ELVIN: No, because, my Lord, your Lordships are proceeding on the sole assumption that the ORR will simply roll over if we say, "We want our paths, we're not going to do the infrastructure". Your Lordships have no basis for making such an assumption, with respect.

  9853. LORD BROOKE OF ALVERTHORPE: I am not proceeding on that. I have seen regulators sacked.

  9854. MR ELVIN: Your Lordships may wish to take a very cynical approach about the regulator. With respect, your Lordships have to proceed on the basis of an independent regulator established under law, subject to the supervision of the court. I ask your Lordships just to bear this in mind, is there any indication in the decision we have had so far, which has taken away two of our paths and which has imposed a change control mechanism which says in the event of any prejudice we lose paths, not just temporarily, but permanently, to suggest there is any lack of independence in the regulator.

  9855. LORD BROOKE OF ALVERTHORPE: I am not saying that there is, I am asking the question about what would happen if you wanted to expand your activities. We are listening to a Petitioner who is concerned about whether or not they will be able to meet the expansion of their business in the future and I am very convinced by many of the arguments that you are making.

  9856. MR ELVIN: My Lord, can I put the question this way. What happens if any train operating company wants to expand its activities? It is given under its access option, which has to be applied for usually on a short-term basis, Crossrail has exceptionally been allowed a 30-year period because of the exceptional scale of the investment involved, usually it is more like ten years. Everybody has to apply for their access option. There is equality across the board, whether it is Crossrail or any other train operating company. You have to make the case to both Network Rail, as the infrastructure manager, and then if Network Rail is convinced, you then have to have the independent adjudication of the ORR, which mandatorily includes, because of sections 17 and 18 and Schedule 4 of the Railways Act, an industry-wide consultation. Those protections are there for everybody and they apply to every train operating company that wishes to expand its operation. Exceptionally in this case, we have not only been asked to make provision for existing paths to be protected, we have allowed for paths to allow rail freight to grow to the figures agreed to 2015. Our paths have been constrained not only by existing paths to be protected but by also scope for growth of the freight industry.

  9857. LORD BROOKE OF ALVERTHORPE: Yes. I do not think we can draw a straight analogy with what might happen with an application elsewhere because they do not have the opportunity in those circumstances to be expanding the infrastructure. This is what the argument is about, it is whether there will be sufficient infrastructure and I am convinced by many of the arguments you are making. All I am saying is that within there I did not see a provision to cover the possibility that you might want more paths.

  9858. MR ELVIN: The provision is there. It is not in the access option because the access option gives what it gives. The provision is in the Railways Act which says that if we want more paths, we have got to apply for them and if the ORR says there is insufficient capacity, "I am now going to specifically require you to carry out the following infrastructure works as a precondition", that can be done. My Lord, the protections are the same. We can not simply say, "Oh well, we'd like another ten paths at peak hours, week days". What we have to do then is apply again and get a new access option, which is why I was saying it is the same process that applies to any train operating company that wants additional capacity. We have got to go through the application procedure and get a new right. Our right is limited to what the ORR has adjudicated upon. If we want more, we have to apply for it.

  9859. LORD BROOKE OF ALVERTHORPE: Why did you put the 24 proposed works in the Bill?

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