Q81 Stephen Barclay: May I first apologise for being late? We had a remarkable statement on our health regulator covering up deaths of babies, so I was in the Chamber for that.
I want to return to an issue raised at our last hearing. Can you clarify, Mr Rutnam, whether Network Rail is a body that exercises functions of a public nature?
Philip Rutnam: Is that a reference to a particular piece of legislation?
Q82 Stephen Barclay: That is right. The Freedom of Information Act refers to bodies that exercise functions of a public nature. I just wondered whether Network Rail exercises such functions.
Philip Rutnam: I am no expert on the Freedom of Information Act. My understanding is that the law as it stands does not extend to Network Rail and that the Freedom of Information Act does not apply to Network Rail. It falls outwith whatever the relevant definition is. David may know rather more.
Q83 Stephen Barclay: I do not know-hence the question. You are absolutely correct that it does not apply now, but-a little like our exchange with Mr Hartnett on whether he was prevented or had discretion-the question is whether you have the power to designate it as a body to which the Freedom of Information Act would apply.
Philip Rutnam: I am afraid that I would have to write to you on what the powers-
Q84 Stephen Barclay: The issue was raised at our last hearing and it was a recommendation of the Committee that you turned down. I would have thought that, given that you turned down a recommendation of the Committee, that would be something with which you would be familiar.
Philip Rutnam: This was a hearing with Lin Homer? Stephen Barclay: It was indeed. It was only last year. Philip Rutnam: Okay. The Government's policy, as I understand it at the moment, is that the Freedom of Information Act does not apply to Network Rail, so-
Q85 Stephen Barclay: No, we have covered that. I fully understand that. I may be wrong on the law, but you rejected the recommendation of the Committee even though Mr Higgins and Mr Emery both said in their evidence that they were perfectly happy for FOI to apply. It seemed odd that the senior executives of the body were happy for FOI to apply, the Prime Minister has given a very clear policy direction to Departments on his commitment to transparency and yet officials within the Department were saying that FOI should not apply.
FOI section 5 says, "The Secretary of State may by order designate as a public authority for the purposes of this Act" a body if it exercises "functions of a public nature". I wanted to clarify, is there something elsewhere in the Act that precludes you from designating Network Rail?
Philip Rutnam: I have not had notice of that question. I am afraid that I am not an expert on that legislation, nor was I given any notice on questions about the application of FOI to Network Rail. If you would like us-
Q86 Stephen Barclay: There was a leader in The Times as well. It had as a leader and a front-page story last week its desire for FOI to apply. Did that not trigger anyone within the Department to have a look at this?
Philip Rutnam: Is your question about what the law allows Ministers to do-whether the law allows Ministers to designate Network Rail?
Stephen Barclay: Yes.
Philip Rutnam: Okay. Or is your question about what the Government's policy is?
Q87 Stephen Barclay: The Government's policy is clear; it is not to designate. What I am trying to understand is whether without primary legislation you are prevented from doing so, which appeared to be the answer in the Treasury minute, or whether you have the discretion to designate, but are, for policy reasons, opting not to. That is what I am trying to establish.
Philip Rutnam: That is clear. Thank you for that. If we may, I will write to the Committee on that point, because I am afraid that I do not have the answer in my head.
David Higgins: Could I offer a comment on that? You are right that when I appeared here some two years ago, I said that if FOI is the Government's desire, that is fine. I have been chief exec of two other organisations subject to FOI.
We have not sat around doing nothing. We launched resourced-up transparency because, for me, transparency is more important than FOI. FOI zeros a particular area, but the obligation on organisations is to release substantial information after having consulted with a wide range of media and stakeholders as to what is available.
In the last year we have released thousands of documents, and the result of that is that you have got websites and applications now that have sprung up from the industry. Every three months we release a lot more, and we are working closely with our train operating companies and partners. We would like to release a lot more information and will consistently push that line.
Q88 Stephen Barclay: One of the issues around that was compromise agreements. Could you update the Committee on how many compromise agreements have been paid in each of the last two years?
David Higgins: I will come back in writing, but there are none that I am aware of.
Stephen Barclay: Because you know that there was a substantial number prior to your taking over.
David Higgins: Correct. I remember that.
Q89 Stephen Barclay: So, as far as you are aware, since the start of your tenure, no compromise agreements have been paid by Network Rail?
David Higgins: I will write back to you. Certainly, I remember the concerns that were raised here last time. I am not aware of any, but I will respond if it has gone through a system that I am not aware of.
Q90 Chair: We want to come on to the franchise issue, but I will ask a few things before Meg comes in on that. I should have covered this earlier, so apologies for this. The cost-benefit you have done on this project, which is 1.4:1, looks to me to be pretty low, although I am told that about 1.4 or 1.5 is pretty regular for railway investment projects. Is that right?
Philip Rutnam: No. Rail projects have a range of benefit-cost ratios and some are definitely higher than 1.4 or 1.5. I can think of some examples. It is-