Rail Safety (Amendment etc.) (EU Exit) Regulations 2019

Baroness Randerson Excerpts

Monday 13th May 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, these instruments will be needed if the UK leaves the EU without a deal and are important in ensuring clarity, certainty and confidence for the rail industry and its customers. I shall provide some background. These three instruments make corrections to several pieces of EU and domestic legislation covering rail safety in Great Britain and rail safety, train driver and operator licensing, access and management and cross-border rail workers’ rights in Northern Ireland.

I turn first to the Rail Safety (Amendment etc.) (EU Exit) Regulations 2019, which I will refer to as the GB rail safety instrument. This instrument will make technical corrections to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 and the Railways (Access to Training Services) Regulations 2006. These sets of regulations, which transposed EU law, set out among other things the requirement to obtain the appropriate safety certificates or authorisations before operating vehicles or managing infrastructure on the railway in Great Britain.

I turn to the two Northern Ireland instruments. Rail is a transferred matter for Northern Ireland, and in the absence of a Northern Ireland Executive, it has been agreed that the UK Government will be responsible for the necessary Northern Ireland EU Exit legislation at Westminster. In preparing these instruments, officials from the Department for Transport have worked closely with their counterparts in the Department for Infra- structure in Northern Ireland.

The first of the two Northern Ireland instruments, the Railways (Safety Management) (Amendment) (EU Exit) Regulations (Northern Ireland) 2019, which I will refer to as the Northern Ireland rail safety regulations, is similar to the GB rail safety instrument. It will correct deficiencies in the Railways (Safety Management) Regulations (Northern Ireland) 2006, the regulations that established the legislative regime for managing railway safety in Northern Ireland. The second of the two, the Railways (Amendment) (EU Exit) Regulations (Northern Ireland) 2019, also known as the Northern Ireland composite regulations, will correct deficiencies in three pieces of Northern Ireland rail legislation. Among other things, those regulations established a common regulatory regime for licensing and certifying train drivers and operators on the railways. They also implemented rules on aspects of the working conditions of rail workers engaged in interoperable cross-border railway services.

These instruments will correct deficiencies in legislation as a result of the UK leaving the EU. The vast majority of these corrections are minor and technical—for example, removing references to “member state”. It is important to emphasise that the GB rail safety instrument will preserve the status quo, including the requirements and procedures for obtaining safety certificates and authorisations as well as the requirements for rail operators to establish and maintain common safety management systems. The Government’s highest rail priority is to maintain safety and our highly effective safety regime, which is one of the safest in Europe. The regulations secure that regime.

The GB rail safety instrument will remove certain requirements placed on the Office of Rail and Road to share information with the European Union Agency for Railways. However, there will be a power for the ORR to provide certain safety information to EU bodies on a discretionary basis so we can continue to contribute to a safer European railway.

Safety certificates issued in EEA member states will continue to be recognised in Great Britain after the UK’s exit from the EU. However, it is the Government’s intention to lay a second instrument that will limit that recognition to a two-year transitional period after exit or until the relevant certificates expire, whichever is the sooner. This is consistent with previous rail EU exit instruments that have introduced a similar recognition period for train driver and operator licences, and it strikes a balance between allowing for a reasonable transitional period and enabling greater control over the rail safety framework.

The equivalent regulations for rail safety in Northern Ireland will mirror the GB safety regulations, with the exception that Northern Ireland institutions have no plans to introduce a two-year recognition period for EEA licences and certificates, recognising the greater role of cross-border services in Northern Ireland. These documents will be recognised indefinitely in Northern Ireland to enable the continued recognition of licences and certificates issued in the Republic of Ireland.

As well as making minor changes—for example, removing references to “member state”—the NI composite regulations will preserve the status quo for rail operations in Northern Ireland. In short, that means that operators and train drivers in Northern Ireland will have clarity and confidence about the regime.

It should be noted that the EU has adopted a regulation that will provide a temporary extension to the validity of authorisations, certificates and licences required to run cross-border services. This contingency measure is applicable for nine months in the event that the UK leaves the EU without a deal in place and supplements the extensive efforts already made by the Government and rail operators to secure these important services. While the Government very much welcome the EU regulation, this alone does not provide the necessary certainty for industry which these instruments provide.

These instruments were originally laid under the negative procedure in February of this year. The House of Commons European Statutory Instruments Committee agreed to the use of the negative procedure, but in March the Secondary Legislation Scrutiny Committee of your Lordships’ House recommended that the affirmative procedure should apply as noble Lords might wish to debate the potential impacts on cross-border rail services and those that operate them.

While the Government accepted the committee’s recommendation to lay the instruments under the affirmative procedure, using the standard draft affirmative procedure would almost certainly have meant that the instruments would not have come into effect in time had the UK left the EU on either 29 March or 12 April. Therefore, the Government concluded that, to ensure the instruments were in place for the day expected at that time to be exit day, using the “made affirmative” procedure was appropriate. The Minister responsible for the railways wrote to the chairs of the committees in April to explain this decision and the reasons behind it.

Noble Lords will be aware that, while the Joint Committee on Statutory Instruments has cleared without comment the GB rail safety and the Northern Ireland composite instruments, it has drawn the special attention of your Lordships’ House to the Northern Ireland rail safety instrument on two minor instances of “defective drafting”.

Specifically, the JCSI identified three missing words in a definition relating to the Northern Ireland Department for Infrastructure’s monitoring of safety targets, namely the term “risk to whole”. The committee identified that the term,

“risk to society as a whole”,

appears in paragraph 12(3)(f) of Schedule 7 and it is this term that should have been defined in paragraph 2, in place of “risk to whole”.

The committee also considered that the words,

“risk to society as a whole”,

should have been set out in full in the table in paragraph 14 of Schedule 7, rather than using the label “whole society”. This table sets out how accidents to various categories of person—employees, passengers, et cetera—should be calculated, with the label “whole society” indicating the need to show the total number of serious accidents and fatalities across all those categories; namely, across society as a whole.

I am grateful to the committee for its work and for drawing these points to the attention of the House. The Government do not consider that there will be any real impact on the practicable operation of these provisions or that there will be any possibility for confusion by the Department for Infrastructure. It remains very important that the Northern Ireland rail safety instrument, dealing as it does with a critical area, stays in place as law so as to provide the necessary confidence and certainty that the rail industry and travelling public need. I can therefore confirm that the Government will address these minor drafting points in a subsequent instrument that will be laid in advance of this instrument coming into effect on exit day. I beg to move.

[Baroness Randerson (LD)]

My Lords, I start by expressing my regret that we are discussing Northern Ireland legislation at all. I would have hoped that the Assembly would be up and running again by now. I am not apportioning blame within this Chamber but simply making it clear that I believe it is a great disadvantage to Northern Ireland that the Assembly is not sitting.

These three SIs are being made by an unusual procedure, as the Minister has made clear. The Secondary Legislation Scrutiny Committee recommended that the originally intended negative procedure should be upgraded to the affirmative procedure because of the impact on cross-border operations, especially in Northern Ireland. In the event, because these SIs were not laid until 18 February, it was too late for the usual procedure to be followed, and instead they have been laid under the urgent “made affirmative” process, rather than the usual draft procedure. Northern Ireland deserves better than this. I realise it was not the Government’s intention to have run this as close to the wire as they have, but why was it left so late to lay these SIs? I know that the Government had intended to use the negative procedure, but the fact is that the committee has the right to recommend a change of procedure, and regularly does, so it is the Government’s job to anticipate a change such as that and to allow as much time as possible.

Of course, the irony is that we did not leave the EU on 29 March, and it does not look as though we are going to be leaving any day now. So, in fact, the Government had time to do it by the usual procedure. The Government rather overstate the amount we have to do in this House and in the other place. Business is actually fairly leisurely. Therefore, it could have been done in the usual way, if only everyone had been able to anticipate the situation.

My second question is my usual one. I am concerned once again that the obligation to share information, in this case on safety issues, is being removed and replaced with a power to share information. These three SIs all deal with issues of safety, and my view is that we should not be playing politics with issues of safety and should not be risking the possibility that, either intentionally or unintentionally, safety information will be held back. I ask the Minister: when a safety certificate issued in the UK is revoked by the ORR, what about a rail company that operates in both the UK and the EU? Would the Government then still have a legal obligation to inform the EU?

As the Minister mentioned, there are temporary arrangements to carry the industry over the period after exit. My concern is that EU Part A safety certificates would be recognised for a maximum of two years after Brexit or until they expire. This procedure has been used for other transport-related SIs, and I have previously raised my concern that there is unnecessary uncertainty about this. Some safety certificates will last for two years and some will not, because they will run out earlier. There is uncertainty there.

Meanwhile, the EU has adopted regulation 2019/503, which allows UK certificates to continue to be valid for nine months after exit. My concern is that we are talking about two years in Britain and nine months for British certificates in the EU, so we do not have a consistency of approach. The EU provision appears to apply only to the Republic of Ireland and France, so I ask the Minister: what about Belgium and the Netherlands? They are regularly in receipt of trains which start in the UK, so if these provisions will not apply in Belgium and the Netherlands—as I understand from the Explanatory Memorandum—then what about those trains going beyond those two countries?