Crossrail Bill

The thanks have all been given. I am grateful to the noble Lord, Lord Hanningfield, and my noble friends Lord Brooke and Lord Berkeley. The committee did a first-rate job and I, too, am sorry that the noble Viscount, Lord Colville, is not here to hear his praises sung. He did an extremely good job. When I found a bit of spare time to listen to the committee’s proceedings, he certainly demonstrated a firm grip on events. I found the committee itself extremely interesting. All those who made their representations through that process will have felt that they had a fair hearing. The report produced was of the highest quality, and its authors should be congratulated. It has certainly aided us in taking the Bill forward in Grand Committee, for which we are all very grateful—as I am to the authors for the forthright way in which it was produced. Perhaps polishing up our own credentials here, I say that our committee did as good a job in this House as did the committee in the House of Commons; some say even better, because it did not take quite so long. I shall go no further in my comments on that. I am grateful to the noble Lord, Lord Berkeley for doing a bit of instant regrouping and bringing Amendment No. 22 into this group; I shall deal with that amendment in turn. The noble Lords, Lords Hanningfield and Lord Bradshaw, and my noble friend Lord Berkeley have, in different ways, all raised the question of the infrastructure manager for the central tunnel section of Crossrail. This issue was, as has been said, explored in some detail by the House’s Select Committee on Network Rail’s petition. It is written up very clearly in paragraphs 225 to 233 of the committee's special report, which has been helpful. Also, the special report reproduces at appendix 7 the promoter’s note that describes the complexity of the legislative background to the infrastructure manager issue. For those who have not read these parts of the special report, I ought to outline a little of the background arising from a number of EU directives. For our purposes, we must consider two sets of regulations that transpose directives. These are the Railways and Other Guided Transport Systems (Safety) Regulations 2006, which I shall refer to as the ROGs, and the Railways Infrastructure (Access and Management) Regulations 2005, which are commonly referred to as the ““regs””. The concept of infrastructure manager arises under both the ROGs and the regs, which is somewhat confusing because these are not identical functions and can be exercised by different bodies—possibly even a number of bodies. I hear what Members of the Committee have said about wishing to constrain that. However, there is, in fact, no formal appointment process for infrastructure managers whether by government, the Office of Rail Regulation or any other means. The identity of infrastructure manager is instead based on who exercises particular functions under the ROGs and the regs. There is no reason why safety functions and charging for access to infrastructure must necessarily be undertaken by a single body; EU law certainly does not require it. Neatly, Network Rail happens to be the infrastructure manager under the ROGs and the regs in relation to the national railway network, as we have heard. That makes sense, since it owns and controls it in all respects. However, for example, infrastructure management is organised differently for the Channel Tunnel Rail Link, which is not in Network Rail’s ownership although Network Rail is infrastructure manager under the ROGs for it. The Crossrail central tunnel section is likely to be owned by Transport for London, not by Network Rail, hence it is not an identical situation to the national network. Although it is intended that, for the central tunnel section, Network Rail will perform the functions of the infrastructure manager under the ROGs, this does not mean that only Network Rail can, or must, perform the functions of infrastructure manager under the regs. TfL has a legitimate interest in the operational phase of a project in which it is making a substantial investment. Therefore, the organisational model—defining who does what—must be developed, discussed and decided as part of the project development process. The debate in Select Committee came at an early stage of this project development process, so was inevitably inconclusive. A good deal of work has been carried out since then and there have been a number of discussions between the key parties—the department, Network Rail and Transport for London. We expect to meet the Office of Rail Regulation early next month to seek its guidance. Therefore it would be premature to announce a conclusion today. As was made clear in the Select Committee, Network Rail is under no obligation to accept arrangements that would prevent it fulfilling its responsibilities. The amendment moved by the noble Lord, Lord Hanningfield, has a number of problems. As I explained, the ROGs and the regs, which transpose EU law, do not make provision for anyone to appoint an infrastructure manager. Therefore no appointment function could be given to a nominated undertaker as envisaged in the amendment. The identity of the infrastructure manager or managers will be driven by how the project is structured, so as to allocate various functions, and it will then be a matter of legal interpretation of the ROGs and the regs. That project structure will ultimately need to be agreed by all the parties. The new clause proposed by the noble Lords, Lord Berkeley and Lord Bradshaw, goes further in requiring the infrastructure manager for both the ROGs and regs for the central tunnel section to be Network Rail. This is more than Network Rail has said that it requires, as detailed in evidence to the Select Committee and the special report. For example, Network Rail has not said that it needs to set charges for access to the central tunnel section. In conclusion on this amendment, I entirely accept that the infrastructure manager issue is very important and needs to be resolved, but this is tied up with the organisational structure to deliver the project and cannot be decided in isolation. It is also, as I said at the outset, and as recognised by the Select Committee, an immensely complicated issue that is being tackled as a matter of considerable urgency by the department, Network Rail, TfL and the ORR. It is important to recognise that Crossrail is not being promoted and financed wholly by Network Rail, so the infrastructure management issue should not automatically be treated as if it were wholly a Network Rail project. Amendment No. 21, as my noble friend Lord Berkeley, said, is not unrelated. I have described the relevant legislation on railway regulation, and it is perhaps worth saying that the 2005 regulations provide for certain exemptions for networks intended only for the operation of urban and suburban passenger services, for example. We do not believe that these exemptions under the regs would apply in the case of Crossrail, but it would ultimately be for the courts to decide. The issue of the identity of the infrastructure manager arises because of our working assumption that the central tunnel section is not exempted under Regulation 4. Technically the proposed new clause also has problems. Whether one of the exemptions applies is simply a matter of law under the regulations transposing the EU directives. Even if an exemption were to apply it would not by itself limit the types of traffic that could be taken, as implied by the proposed new clause. The main result would be that refusal of access could not be appealed to the ORR. I hope that I have dealt with the central issues relating to the first set of amendments and that I have given my noble friend sufficient assurance. I can say only what we believe is assumed in our work in developing the project, and cannot of course give a definitive determination on whether an exemption applies under Regulation 4. I hope that having heard what I have said, the noble Lord will withdraw the amendment.