Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10380 - 10399)

  10380. If the parties cannot reach agreement under Clause 40, the matter is referred to arbitration. The Secretary of State may then, under Clause 41(3), specify the results to be achieved by arbitration, and then the arbitrator determines the fair terms—such as compensation—by which those results are achieved. This is to avoid the possibility that the result of the arbitration frustrates the ability of the Nominated Undertaker to deliver essential Crossrail works, which have been authorised by Parliament.

  10381. The asset controllers in question include London Underground and the Public Private Partnerships, BAA and Network Rail. Clauses 40 and 41 are only intended to be used in circumstances where the matter is not within the Office of Rail Regulation's normal jurisdiction, or a solution cannot be reached by normal agreement.

  10382. It follows, therefore, that the Promoter does not intend that clauses 40 and 41 will apply to railway operators on the Network Rail network, as clause 40 should not supplant or override the allocation of access rights under the Railways Act 1993, the taking of possessions under the Network Code as overseen by the ORR, nor, indeed, the Department's stated intention to work within normal industry processes as far as possible in connection with the Crossrail project. If clause 40 is not applied in circumstances where the matter may be referred to the ORR for determination in accordance with its statutory duties or functions, then clause 41 does not apply in these circumstances either.

  10383. Indeed, it is unclear how these clauses could be used to supplant or override the ORR's decisions under the Railways Act 1993 with regard to access rights, as the provisions that would have allowed intervention in the allocation of access rights are intended to be removed in accordance with the Minister's recent statements (made on 11 and 18 April) and clauses 40 and 41 do not directly empower the Secretary of State in making a direction to modify any access arrangements directed by the ORR under the Railways Act 1993. It would therefore be an abuse of power, and thus judicially reviewable, for the Secretary of State to use clause 41(3) to seek to modify any decisions made by the ORR under the access regime of the Railways Act 1993.

  10384. Whilst, therefore, clause 41(3) is not to be used to direct the ORR in discharging its statutory duties or functions, there are other circumstances where clauses 40 and 41 might apply. For example, the Crossrail works at Farringdon station will involve a complex interface with other works, such as Thameslink, and non-regulated asset controllers, such as London Underground. It is therefore recognised that this complexity requires managing in order to ensure the successful delivery of the Crossrail project at this location, particularly as it may be necessary for the Secretary of State to ensure that the terms of a London Underground or PPP contract (which is not regulated by the Railways Act 1993 or within the ORR's jurisdiction) do not unreasonably prevent something that is critical to the delivery of the Crossrail project that has been defined as part of the Bill process.

  10385. Nevertheless, clauses 40 and 41 remain fallback provisions in these circumstances, as it is also recognised that, in this example, London Underground, as a key delivery partner to the project, will have a direct interest in integrating Crossrail works successfully with its own existing assets.

  10386. The Promoter is considering whether it is appropriate to, during later stages of the Bill process, make it explicit that clauses 40 or 41 should not be invoked by either party where the matter may be referred to the ORR for determination in accordance with its statutory duties or functions—in effect, where a solution can be reached under the aegis of the normal regulatory processes.

  10387. Notwithstanding that, the Promoter is clear that it does not intend that clauses 40 and 41 will apply to railway operators on the Network Rail network. The provisions would instead remain in reserve to deal with such complex circumstances as outlined above, although the Promoter will specifically review clause 41(3) following comments that the Select Committee has made.

  10388. I end with a specific response to Lord Berkeley's submissions because the EWS submissions I have dealt with in their entirety, and I simply respond to Lord Berkeley's conclusions on his two slides. The commitment to specific infrastructure I have dealt with. With regard to Conclusion 2, which we can see on the screen, "to confirm we will accept all industry processes as set out in the ORR decision on Option Agreement", our point is the ORR's decision does not require specific infrastructure but we are bound to accept the ORR; that is our means of obtaining access to the national network. It seems to me to be an exercise which is really without any point. [32]

  10389. Given the Minister's statement of the intention to remove the powers in the rail clauses, this is superfluous and it really is the same point as my rejection of an undertaking to carry through the provisions given the ministerial commitment.

  10390. With regard to the second bullet, there are industry processes to regulate possessions, as we have debated at some length during the course of the last three days, and we do not propose to go any further than say we have committed to carrying out industry processes in the way we have expressed our intentions.

  10391. So far as the third bullet, Gospel Oak to Barking is one of those projects which is already funded and, indeed, I think you were told the other day it is already under way, so that is one of those matters that lies outside the purview of the Crossrail Bill in any event.

  10392. On the fourth bullet point, it is not appropriate to ask the Minister not to undertake to introduce further amendments. The proper processes of the House will be followed, and I certainly do not have any submissions to make as to any further proposed amendments that are currently intended. Your Lordships have the proposed amendments that are proposed to be introduced at the Public Bill stage, and the Minister's statement of intention.

  10393. On the fifth bullet I have dealt with clauses 40 and 41, and the sixth bullet is again the same point, the Peterborough-Nuneaton works are matters which lie outside the Crossrail Bill and they are matters being dealt with under TIF in any event, and therefore the undertaking, as with the other, is not justified.

  10394. I am conscious that I owe Lord James the note which we will get to your Lordships by the end of the week, and Lady Fookes' note on safety and security is in hand.

  10395. I will have typed up my handwritten notes on costs with the corrected arithmetic which we will formally tender as an exhibit. I will also have a note to answer your Lordship's question before lunch to give you chapter and verse about the infrastructure manager. I think the simplest way of dealing with that is to submit a note which I ought to copy to Network Rail because it is dealing with a matter that Network Rail raised yesterday.

  10396. CHAIRMAN: Yes. I think we would like that sooner rather than later.

  10397. MR ELVIN: I appreciate that. I would deal with it on the hoof but the complexities of railway industry legislation are such that, rather than make a mistake and have to correct it, I want to get it absolutely right and make sure we have a note that I can hand in with a degree of assurance.

  10398. CHAIRMAN: Are you going to have to take instructions from Transport for London as well?

  10399. MR ELVIN: No. My Lord, I think I said enough about that yesterday. Your Lordship is trying to tease me—well, your Lordship is succeeding, actually!

32   Committee Ref: A52, Conclusion 2 (SCN-20080501-024) Back

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