Examination of Witnesses (Questions 13460
- 13479)
13460. CHAIRMAN: So the Bill will go
back to the recommittal with these amendments in it, and therefore
be reprinted.
13461. What has happened about the undertaking,
about the last sentence about the Office of Rail Regulators?
13462. MR ELVIN: My Lords, can I say
this. The last sentence is not intended to be read as part of
the undertaking. Can I explain this in a little more detail? The
purpose of the undertaking, the reason we rephrased it, is to
target very precisely the concern of the Rail Freight Group and
EWS, who petitioned your Lordships' House on these issues, which
was concerned not with the ORR's role, nor with the infrastructure
works we were proposing, but with the possibility that we might
delete certain infrastructure works which are currently sought
powers in the Bill and that we might put pressure on the ORR in
due course to modify the issues.
13463. The reason we have drafted this—and
I have to confess to having some hand in the drafting of this
undertaking—is to make it clear that this is tied in with
the deletion of proposed infrastructure works, but in order to
deal with the pressure put by the industry, we have sought to
tie this to the ORR's decision of 14 April, which specifically
deals with capacity for rail freight to 2015, which was based
on figures, if you recall, in the Crossrail model which, as Mr
Garrett explained, in evidence on behalf of the Petitioners was
accepted by the parties to the ORR's hearing. So we have tied
ourselves not to any future arguments about capacity but to the
capacity figure accepted by the ORR on 14 April. So we are specifically
seeking to tie that undertaking to that agreed figure with the
rail freight industry rather than anything that might be argued
after 14 April.
13464. CHAIRMAN: So is the last sentence
not part of the undertaking?
13465. MR ELVIN: The reason for the last
sentence—and it should not be read as part of the undertaking—is
this. We simply have to make it clear that of course, as the undertaking
must be without prejudice to any role the ORR has which is under
separate legislation approved by Parliament, the Railways Act
1993, because the ORR has made it clear that any decision as to
whether to allocate future parts, how to parcel out future capacity
and who to, must be a matter for industry processes in the future.
The last sentence, said perhaps inelegantly, was seeking simply
to make that point.
13466. CHAIRMAN: Is not the simple thing
to take the last sentence out of the undertaking?
13467. MR ELVIN: Absolutely.
13468. CHAIRMAN: If you want to put it
in as a footnote, you can.
13469. MR ELVIN: My Lords, I make it
clear, the undertaking that was given by Mr Taylor should now
be read with the deletion of the sentence "The translation
of such capacity into the allocation of capacity is for the ORR
to determine." That sentence should be deleted and I simply
say that it is there as explanation that it is without prejudice,
of course, to the ORR's statutory role.
13470. CHAIRMAN: Thereafter it is a matter
of law.
13471. MR ELVIN: Yes, but I hope your
Lordships understand why we have drafted it the way we have, and
we have targeted the specific—
13472. CHAIRMAN: Lord Brooke spotted
it.
13473. MR ELVIN: Yes. My Lords, I do
not want to bicker about this but whichever of your Lordships
was responsible for raising the point and spotting it, I hope
at least that explanation puts your Lordships' concerns at rest.
13474. BARONESS FOOKES: Does it help
to have it as an explanatory note?
13475. MR ELVIN: I have given the explanation
to the record and no doubt we can put on the record of undertakings
a note to the effect of the explanation I have just given, that
it is without prejudice to the ORR's statutory role, if that is
of assistance.
13476. LORD SNAPE: Actually, it is not
of assistance. I hate to fall out with my colleague on the very
last day but I am a bit surprised. I do not think adopting that
approach is of any great assistance. It is implicit in the response
that Mr Elvin has just given, but I would hope that he will not
be too tempted to include it; having promised to strike it out
of the original response, I prefer him not to include it as a
footnote.
13477. MR ELVIN: My Lord, can I make
it absolutely clear? I will happily read the undertaking as it
now stands, if that clarifies matters for the record. The undertaking
that will go on the register will not have the last sentence.
My qualification, however it is dealt with—and your Lordships
may want to recommend how we deal with the qualification, if at
all, in your Lordships' special report in due course.
13478. CHAIRMAN: It will be in the transcript
now anyway.
13479. MR ELVIN: It will be in the transcript
now. We are happy to do whatever the Committee thinks is appropriate.
It is not part of the undertaking, if that puts my Lord Snape's
concerns at rest.
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