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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