Consultation report: proposed amendments to regulatory and appeal mechanisms for the Channel Tunnel

This report records the representations the Department received on its consultation exercise on proposed amendments to the way that the UK delegation to the Channel Tunnel Intergovernmental Commission (the IGC) operates, and the Department's response to them. The consultation commenced on 14 September and concluded on 7 December 2007.

The Department received three replies to the consultation within the deadline. The first, from the Head of the French Delegation to the IGC, regretted that the French delegation had not been forewarned and consulted, prior to publication, on the content of the consultation. The references in the consultation document to the Mission de contrôle des activités ferroviaires (MCAF) wrongly suggested that this was the Regulatory Body established in France in accordance with Article 30 of Directive 2001/49/EC of the European Parliament and Council. In fact, the MCAF was an advisory body to the Minister for Transport, who held the responsibility for the regulatory functions under the Directive. Moreover, the functions of the MCAF were restricted to the French "national rail network", which did not cover the infrastructure of the Channel Tunnel.

In response to these representations, the Department recognised that the language of the consultation document had been inaccurate. The principal intention had been to make clear that decisions on regulatory matters would not be taken unilaterally. On reflection, it might have been better to have referred simply to the continuing need for collaboration and contacts between the UK and French delegations to the Intergovernmental Commission.

The second response, from English, Welsh and Scottish Railway Ltd (EWS) strongly supported the proposals, which it described as consistent with its belief that regulation of all railways in the UK (including the UK regulatory functions of the IGC) should in the future be carried out by the ORR. EWS considered that the ORR members of the IGC should always be drawn from senior employees of the ORR; and also suggested that consideration should be given to the possibility of incorporating the UK part of the Channel Tunnel Safety Authority within the ORR.

The Department confirmed that it was the intention that the ORR members be appointed following a recommendation from the ORR, based on an assessment of the candidates' knowledge and expertise. However, it should be open to the ORR to propose candidates - in particular for the post of Head of UK Delegation - from a wider field. It must be borne in mind that the duties and responsibilities of the IGC under the Treaty of Canterbury are undertaken in the name and on behalf of the two Governments, and cover a range of matters, some of which are outside the remit of the ORR. The ORR may therefore prefer to recommend a Head of Delegation from outside the ORR who has the breadth of experience to deal with all the issues before the IGC. Moreover, the final discretion on such appointments must rest with the Secretary of State.

The Department also drew attention to the fact that although the Channel Tunnel Safety Authority (CTSA) is an independent body established by Treaty, the UK Secretariat to the CTSA has been located within the ORR since the ORR took over the role of British rail safety regulator from the Health & Safety Executive. Moreover, the ORR is consulted on the appointment of the Head of the UK Delegation to the CTSA, who is also, ex officio, the CTSA representative on the UK Delegation to the Intergovernmental Commission.

The third response, from Eurostar (UK) Ltd, broadly welcomed the proposed amendments to the way that the UK delegation to the Intergovernmental Commission (IGC) operates, and noted and welcomed the statement in the proposal that the proposed arrangements are not expected to have any financial impact. This response did not require any reply other than an acknowledgement.

A fourth response, from the Rail Freight Group, failed to reach the Department by the deadline. It was essentially the same as the response from EWS. Officials contacted the Rail Freight Group to explain that the original response had not been received and to provide the same reassurances that had been given to EWS.