Heavy Duty Vehicles (Emissions and Fuel Consumption) (Amendment) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Monday 25th March 2019 Grand Committee

[Lord McNally (LD)]

My Lords, I presume that when Constantinople or Rome fell, there were still committees sitting somewhere in both cities looking at issues such as drainage and transport. The record should show that the House of Lords has felt it necessary to adjourn at this moment but the Committee looking at statutory instruments for exiting the European Union continues to sit. Of course, this instrument has been introduced by the Minister with her usual clarity and good sense.

We welcome the commitment by the Government to continue with the monitoring of CO₂ from heavy goods vehicles. It is important to ensure that the UK is meeting its target in relation to emissions and air quality, and reporting is key to keeping us on track for reducing emissions and air pollution. However, we have to face the fact that, by leaving the European Union, we will lose its valuable oversight in ensuring that the Government comply with air quality legislation.

We have not been the greatest pathfinder in terms of environmental protection. I once worked for the water industry and, following European legislation, that industry was dragged kicking and screaming into what was probably the 19th century at the time, and I think that the same may be true of air quality. I am not sure that we will be as good at this on our own. We need to prioritise the reduction of emissions, given the thousands of deaths being caused every year and the serious impact they can have on health, particularly on that of children.

These regulations were initially conceived in tandem with targets for CO₂ reduction that were suggested by the Commission and revised by the European Parliament. Will the targets set by the Government keep in tandem with any standards set by the EU Commission and Parliament?

We welcome the use of the ambitious CO₂ reduction targets, but we must ensure that the industry is sufficiently supported to meet them. What are the Government doing to encourage the adoption of ZEV/LEV HDVs—I am pleased to note that, after I inquired earlier, the Minister knows what that means—be that through subsidies or improvements in the infrastructure? How will we help the industry to keep pace with developments of zero and low-emission HDVs? Do the Government envisage that the fines levied against those who fail to comply with the data gathering will be in line with those proposed by the EU, and will they keep pace with the fines to ensure compliance?

The instrument provides for further regulations to be made to set out the procedures by which manufacturers can notify the Secretary of State of errors in data. That will be key to ensuring that we have an effective and transparent system. When will those regulations be brought forward?

These regulations were brought forward by the European Union as part of a wide package of measures to ensure that Europe’s future mobility system is,

“safe, clean and efficient for all EU citizens”.

What impact could our exit from the EU have on our future plans to reduce harmful emissions?

Finally, the Minister mentioned that it was not thought necessary to go through a formal consultation process, but were environmental and health groups consulted in any way during the discussions? Some have made accusations of a lack of transparency while the regulations were considered.

Further, what continuing access will we have to EU-wide data collection and analysis in order to drive up standards and related matters? Are we not cutting ourselves off from the best practice data which helps to drive good standards?

As I say, we welcome the way in which the instrument has been presented and the work done, but it leaves these questions unanswered.

[Lord Tunnicliffe (Lab)]

My Lords, I make my standard statement that I wish I was not here and that we were not preparing for a no-deal scenario. I fear that such a scenario would be every bit as bad as predicted. I think we must all hope and pray that it does not happen.

Turning to the generality of what the statutory instrument does, I think it obviously makes sense within the general theme of developing controls on transport-related CO₂ emissions. I have only three real areas of concern, and certainly none which would cause me to oppose the statutory instrument.

First, in paragraph 2.2 of the Explanatory Memorandum, sub-paragraph c) says among other things:

“Some data is commercially sensitive and exempt from publication”.


That seems to me to be completely opposite to the concept of the statutory instrument and the regulation that it modifies. Surely, its whole concept is that all data is available to everybody in the same format, so that even small firms with one or two vehicles would have no problem in comparing manufacturers when they consider purchasing one of these heavy duty vehicles. Having said that the data is commercially sensitive—and I cannot see why that statement is there at all—if it is commercially sensitive, that would require us to be kept in line with the commercially sensitive decisions that the EU made; otherwise, the usefulness of this data-collecting exercise would otherwise be rapidly eroded. Does the department have any plans to somehow consult the European Union on what areas of commercially sensitive data it is going to suppress? I hope that the answer will be none.

I was sufficiently curious about this SI to look at regulation 2018/956. I am amazed to find that its requirements are in fact for the collection of 78 pieces of data without air drag values—which I could not understand at all but which had their own separate table. One thing that struck me was that about a third of the regulation was made up of the preamble, which is 22 paragraphs and four pages long. I think that the Minister has already alluded to some things that it says:

“The Commission’s 2016 European Strategy for low-emission mobility sets the ambition that, by mid-century, greenhouse gas emissions from transport will need to be at least 60 % lower than in 1990, and be firmly on the path towards zero”.


Does this regulation coming into English law mean that we are accepting the Commission’s low-emissions strategy targets? Is it part of our law, or is that covered somewhere in the complexity of the European Union (Withdrawal) Act? After it comes into law, where would one find it? Would that be in the Kew records, as I call them?

Finally, how would the regulation be enforced? The statements in its preamble are really statements that the Government should have regard to in the future.

Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Thursday 21st March 2019 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I will start with the licensing of railway undertakings regulations. This SI is slightly more like the type of arrangement that we were promised at the start of this gruelling marathon. It is intended to ensure the minimum change.

Currently, there are two sorts of licence in Britain. One is issued by the ORR to a small number of operators, such as Merseyrail, that are separate from the main network, and it is based on 1993 rules. The rest of the operators have a European licence based on 2005 regulations. If you hold one of those, you can provide services in any EEA member state. This is all part of the European programme to establish a single European railway area. That is a very sensible approach that will be a basis for equal access, competition and common rules on safety, which is very important.

This SI allows operators with a licence not issued by ORR to continue for two years after exit day, whenever that may be. Will the Minister clarify that this is a rolling feast—that it will be two years after an exit day on, for example, 22 June? That would be sensible, but I am concerned that the rules on continuity in these SIs are so haphazard: some things finish in September, some finish in December, some continue for two years from whenever we leave, and so on.

After two years, under this SI, operators will need to revert to an ORR licence. The Explanatory Memorandum helpfully notes that only one operator is currently caught by that rule. Importantly, the SI does not provide for long-term mutual recognition of operator licences issued by the EEA and held by cross-border service operators—that is, the Channel Tunnel. Mutual recognition will depend on future bilateral agreements. Can the Minister update us on negotiations on this aspect?

Eventually, after two years, the only type of licence that will be valid in Britain will be issued by ORR. Existing European licences will cease to be valid and operators will instead need railway undertakings licences. Once again, this is a long, tortuous, bureaucratic process to change the name of the licence.

Finally on this SI, I express my delight that there has been a full consultation, which has been reported back to this House in detail, as consultations should be. It was comprehensive in that it included passengers, freight operators, devolved Administrations and so on, and a draft instrument was produced. It is ironic that this SI will involve minor disruption for a relatively small number of large organisations which to some extent are equipped to cope with it. While we have had a full consultation for this SI, in the case of others that involve major changes for people who are not equipped to deal with them, we were told that they did not get a consultation because the changes were not considered significant or to pose a risk. The truth is that this Government are getting away with a massive distortion of the normal rules followed by Governments; ignoring the consultation process is one aspect of that.

I turn now to the train driving licences and certificates SI, which affects thousands of train drivers, as opposed to a handful of companies. While a full consultation has been done on the previous SI, this one apparently is not important enough to warrant one. In the Explanatory Memorandum there is a list of organisations that attended a workshop, but there is no mention of trade unions. Trade unions are very strong and active in the rail industry and a very important group of people. Were they consulted and, if so, what did they think about these changes? If they were not, do the Government have any intention of having discussions with them?

In 2010, the EU regulations established a standardised regime for the licensing and certification of train drivers, with a standardised layout of licences and certificates, which of course is important to avoid confusion about what documents can be accepted. It includes, for example, what rolling stock they are qualified to drive. I cannot stress enough how important it is that there is clarity on qualifications and certification. That is really important for safety. I have a good friend who is a train driver, and he has explained to me at some length the difference between the levels of qualification and how important those differences are for our safety. Standardised criteria for training and examinations are obviously as important as, if not more important than, in many other professions.

In 2015 the regulations created a new standard for language and eyesight tests. Everyone can realise the importance of that. Facility with the language is as important for train drivers as it is for the medical profession, for example, and eyesight is extremely important.

Sensibly, this SI includes a transitional provision for the recognition of European licences in Britain for up to two years. Can the Minister clarify why the phrase “up to two years” is repeatedly used in the Explanatory Memorandum? Is that because the two years is measured from the end of March and we may not leave then? Or is it because the Government have not fully decided what the end of this story is going to be? I am sure that the Minister will understand that knowing exactly how long your licence is going to last is pretty important for those engaged in the profession—and indeed for the people who employ them.

Paragraph 2.11 of the EM says that only,

“a small number of train drivers”,

use European licences. Perhaps the Minister could clarify how many “a small number” is.

I have a real concern about paragraph 2.13, on the removal of requirements to inform the EEA safety authorities if a driver is not meeting the conditions of a licence. There is a discretionary power included for passing information for a transitional two-year period, but there is no obligation. This is something that I have raised time and again: the transfer and sharing of information are at the core of safety procedures, and yet again this Government are playing politics with the safety of our transport system.

[Lord Tunnicliffe (Lab)]

My Lords, this is about my 60th SI, so I am into some SI fatigue. Previously I have started by saying how much I regret being here because of the Government’s failure to rule out a no-deal Brexit. Unfortunately, the world has changed. If nobody blinks, our no-deal exit is next Saturday and these rules will come in. I therefore have to disagree with my noble friend Lord Foulkes: I think we do have to do this work, for the worst possible reason—because we are in the worst possible place. Brexit itself is bad enough, but the Brexit that is going to be thrust upon us unless sanity reigns—

[Lord Foulkes of Cumnock]

Will my noble friend give way? I am going to agree with him: we have to do this. I just regret that we are having to do it because the Prime Minister has taken such a stubborn attitude. If she had understood the position and realised the strength of feeling earlier, we would not now be in the situation of facing the possibility of no deal at the end of next week. I hope that we do not have no deal, but I understand why we are having to do this. I just think that it is a terrible waste of the Minister’s time and staff time, and it would have been completely unnecessary if the Prime Minister had made a sensible decision.

[Lord Tunnicliffe]

I am glad the noble Lord agrees with me that, unfortunately, it is now a necessity.

Turning to the two instruments, first, I agree with virtually everybody who has spoken—including my noble friends Lord Berkeley and Lord Snape, and the noble Baroness, Lady Randerson—that the ongoing exchange of information should be a long-term aspiration, even in the silliest position we might find ourselves in. Can the Government come out and say that it will be a long-term aspiration in the rail industry? Exchange of information in the transport sector is one of the key factors necessary to achieve the levels of safety we have come to expect.

--- Later in debate ---

[Baroness Sugg]

I hope that I am able to provide further reassurance that we wish to continue to share information with our neighbours. Obviously, the exact format of that and how we do it will be subject to our future relationship.

On the number of licensed operators, there are 250 drivers in the UK. We are confident that they will relicense with the ORR within the next two years. We notified the industry of this requirement in 2017. Train operators would normally do this on behalf of their drivers in almost every case.

A small number of drivers are using ORR-issued licences in the EU. These will not be recognised in a no-deal scenario, but we have worked with the regulator and operators to ensure that those drivers are aware of the need to obtain an EU licence. I am sorry that the driver who the noble Lord, Lord Berkeley, spoke to was not aware of that. If I can get some more information on that, perhaps we can get in contact with them and make sure they are aware.

Following engagement with operators, we are confident that they are aware of everything that they need to do. The technical notices that we published back in October set out the position. We are confident that all relevant operators will have relicensed their train drivers before exit.

A number of noble Lords mentioned the Channel Tunnel. Under EU law, Eurotunnel, as an operator of the shuttle service, is not required to hold and operate a licence. It is a unique cross-border operation and is therefore unaffected by the operator licensing provisions. Eurotunnel engages both UK and French-licensed train drivers to operate its shuttle services. Its ORR-licensed train drivers will be unaffected by these regulations. The Government are working closely with European counterparts, including France, on bilateral arrangements for train drivers operating the freight service and the shuttle service through the Channel Tunnel. The intention is to ensure that the current licensing arrangements are maintained, meaning that Eurotunnel can continue to engage both UK and EU-licensed train drivers in its shuttle operation.

We are also supporting operators with contingency plans. We strongly support the EU’s proposed contingency measures on rail, which will help mitigate any disruption to Eurotunnel shuttle services regarding train driving licences and provide more time for the bilateral arrangements which we expect to be put in place.

The draft regulations from the EU cover UK-issued licences, certificates and authorisations, remaining valid for cross-border rail services for nine months from the date of exit. That will cover both Channel Tunnel services and cross-border services on the island of Ireland. COREPER endorsed this on 20 March. The proposal is expected to be adopted by written procedure tomorrow by the Council of Ministers, and we expect it to take effect early next week. We strongly support those contingency measures. Our future arrangements may well be bilateral, but that nine-month period gives us enough time to get them into place.

[Lord Tunnicliffe]

I am sure everything the Minister says is accurate and that if I understood the treaty I would understand what she said, but can we translate it into practical terms? By Eurostar services, I assume that she means those to Brussels and Paris—and some intermediate stops which I cannot remember. I think she is telling the House that, on Saturday week, those services will be able to run; and I think she said that the shuttle service would be able to run. But say somebody wants to start a service—as people do aspire to—from London to Milan; is there a bilateral agreement that will allow that to happen or is it one of the many that would have to be negotiated? What if we start running a wider variety of services through the tunnel, such as London to Milan or London to Lyons, through France and into a third country?

[Baroness Sugg]

The regulation refers to services that are currently running, which will not be affected on day one or after. New services will be subject to separate authorisation and agreements. We hope that our future bilateral arrangements with member states would allow those new services to function, but, at the moment, the proposed regulations cover existing ones.

On the island of Ireland, the draft regulations make provision for licensing arrangements in Great Britain, with the exception of technical corrections to EU-implemented legislation with effect in Great Britain and Northern Ireland. A separate instrument is being taken forward on behalf of Northern Ireland. As with Channel Tunnel services, the UK is engaging very closely with Irish authorities, as well as with the operators of the Enterprise service, to make sure that appropriate arrangements are in place to see the continued smooth function of that service in the event of no deal. Licences issued by Northern Ireland will be valid in the UK and the draft EU regulation will support the smooth running of cross-border services, so that there will be no disruption there.

The Government are, of course, committed to maintaining high safety standards on our railways. We will probably come on to this in our next debate, on future divergence, but we are clear that we will continue to fully engage with industry to look at the impacts—particularly the safety, commercial and cost impacts—of future changes in our railways.

There was a full consultation on operator licences, as part of the consultation on implementing the market pillar directive of the fourth railway package in the UK. The noble Baroness, Lady Randerson, rightly pointed out that we had a workshop on train driving licences. Unions were invited to attend, but I do not believe that they did. However, there has been extensive engagement between cross-border operators and the unions on arrangements for the licensing of their drivers in the event of no deal. As I have said before, the vast majority of drivers in the UK will be unaffected by this. The Secretary of State has also written to the general secretary of the ASLEF union, outlining our preparations and the actions that industry should be taking in advance of 29 March.

There will be no substantive increase in the ORR’s workload as a consequence of this. On exit day there will be no change to the validity of any existing licences being used. Currently, only one operator providing train services in Great Britain is using a licence issued by an EU member state. After two years, that operator will need to apply to the ORR, but there is no further burden on their resources.

I hope that I have answered noble Lords’ questions—

[Lord Tunnicliffe]

The noble Baroness has accepted that bilateral negotiations will be necessary in order to extend services through the tunnel to other destinations. Have these started? Is there clarity on who to talk to? Have there been any informal discussions to give us some optimism that there will be favourable outcomes?

[Baroness Sugg]

Bilateral conversations have indeed started. They have not yet been finalised; we would have been able to finalise an agreement in time for exit day had the EU regulations not come into force. I am not entirely sure whether future services are part of those conversations, but we very much hope we can ensure they can happen after we leave the European Union. We are working very closely with all our European counterparts, including France, regarding bilateral arrangements on licensing and certification, the existing international rail freight services, and passenger services. Given the EU regulations, we are confident of mitigating the disruption to those services. As I say, we are also working very closely with the rail operators to make sure they are prepared and hold valid EU licences where they need them and certificates to continue operating in the EU in the event of no deal.

Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Thursday 21st March 2019 Lords Chamber

The fingerprints of the Secretary of State are all over this SI. I therefore have no confidence that it will do anything other than undermine our rail industry.

[Lord Tunnicliffe (Lab)]

I first declare an interest as a founding chairman of the RSSB and its chairman for five years. Many of the transport SIs have assigned duties to the Secretary of State, and on each occasion I have asked who will advise the Secretary of State and whether it is a statutory or necessary process. As far as I can see, in this case it is not clear who would advise the Secretary of State, and I think that is deficient. I will not make a long speech, because, broadly speaking, I agree with my noble friend Lord Berkeley—not something I do that often, but on this occasion he has got it absolutely right.

One reason for the affluence we all enjoy today—this has been a truth since the beginning of the Industrial Revolution—is the impact of volume. When you think of it, a small family car costs less than one year’s labour costs for a car worker. Imagine standing there with a heap of coal and a heap of iron ore, and you have to build a car in a year by yourself. How do people achieve these things? It is through volume, research, mechanisation and complexity. Complexity is constantly brought into our lives at very little cost, because of volume. This law of volume means that the £13.50 watch on my wrist, as a one-off, would probably cost several hundred million pounds to develop from scratch. Volume is king, and the curse of the railway industry is that it does not, in general, have volume production. Therefore, it is unable to amortise production costs in the same way as industries such as the automotive industry. The ERA was the basis of allowing volume to be created. This is particularly important with the signalling revolution that is under way in Europe and this country.

I therefore agree with the general approach taken by my noble friend Lord Berkeley. I hope the Minister will produce some warm words about future aspirations. It would be madness not to become an associate member of the ERA, if we are able to negotiate that. I doubt whether this is the right instrument to require that, and therefore I do not support this regret Motion in the absolute sense of how it is written, but I support the general philosophy behind it.

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

My Lords, I thank the noble Lord, Lord Berkeley, for securing this debate and other noble Lords for their contributions. I greatly respect the depth of knowledge and experience that the noble Lord and many other noble Lords have in this area, and I am sorry that there is a strong difference of opinion.

The technical notice published in October set out the Government’s position in the event of no deal and the UK no longer being a member state, and that is that we will not seek formal participation in the European Union Agency for Railways. The reason for that is that this will provide scope in the future for potential convergence should we consider that to be beneficial for passengers and industry. It is likely that associate participation in the agency by third countries will be conditional on their adopting and applying full Union law for railway safety and interoperability, and the Government’s position is that if we leave the EU with no deal it would not be appropriate for us to continue to be compelled to accept rules that we would not be able to vote on. That is the position of the Government on the European Union railway industry.

These exit regulations specifically make the changes that are necessary to ensure that the rail vehicle and infrastructure authorisation regime continues to function correctly. They put in place a domestic rail standards framework that will replicate the technical requirements —the TSIs—in force on exit day. These changes are needed because we will no longer be a member state and those deficiencies will be there if they are not corrected. Therefore, I am pleased that the noble Lord downgraded his fatal Motion to a regret Motion.

The noble Lord’s Motion states that divergence from the EU standards will cause excessive costs to UK businesses, but I can reassure noble Lords that any decisions about potential divergence will not be taken lightly. This SI does not imply that there will be divergence but allows the possibility of divergence to happen. The flexibility to align or diverge will not necessarily increase costs; in some cases, it could decrease costs. The post-implementation review of the railways interoperability regulations found that the inability to diverge is causing excessive costs in some cases. For example, the Private Wagon Federation noted that EU standards prevent the UK from using older freight wagon types that are allowed in some other member states. It is concerned that that is increasing costs for the freight industry. Network Rail has also raised concerns that the costs associated with a rigid approach to the application of EU standards could sometimes outweigh the benefits.

Many noble Lords cited the concerns of the industry on this position. The concern is around future divergence rather than the position itself, and I agree that it is important to get it right. Decisions on divergence will always be made on the basis of consultation with industry and stakeholders, taking into account UK interests, and we would not choose to diverge if this process identified excessive costs to the UK or safety concerns.

I disagree that we have an aversion to the word “Europe”. As the noble Baroness, Lady Randerson, pointed out, we are seeking continued participation in many European organisations. In this area, we will continue to play a leading role in European standards organisations. The BSI will continue to play an active role in the European Committee for Standardization and the European Committee for Electrotechnical Standardization, for which membership is not an obligation after we leave the EU. We will also continue to be an active member of the Convention concerning International Carriage by Rail, COTIF, which will help us to shape international rail technical standards. This would also allow us to share information when we are no longer a member state. As I said in the previous debate, we are committed to sharing information.

There were a couple of questions in the previous debate on why we would cease to share information. To clarify that, we would cease to share information about non-ORR issued licences from the UK. After two years, we would not have any of those and so we would continue to share information about our ORR-issued licences. We are committed to continuing to share information, and there are plenty ways we can do that outside the European Union rail agency.

We want to continue to work closely with the agency in the development of rail standards. We of course understand the importance and the advantage of working closely with our European neighbours, both for our manufacturers and the infrastructure here in the UK. We understand from the Rail Safety and Standards Board, the RSSB, that there has already been some discussion with the agency on the ways the two organisations will continue working together after exit to share best practice on the development of standards and rail safety. That might take the form of a memorandum of understanding between the two organisations, and we would encourage a close working relationship. However, the exact nature of our relationship with the agency should we leave with a deal will be subject to wider discussions with the EU on a future partnership. This is a statutory instrument in the event that we leave with no deal.

I appreciate that there are concerns about the process for developing these new NTSNs after exit and how we make decisions about the appropriate technical contact. I assure noble Lords that the Department for Transport will work closely with the RSSB as the main UK industry body for the development of the rail technical standards to inform NTSN decision-making. The RSSB has agreed to run consultations on proposed new NTSNs in response to new EU standards. These will be run in parallel with the European consultations as the standards are developed. Those TSIs are published online and there will not be a hold-up in decision-making here so that we can step with the standards. The RSSB will report any identified impacts of divergence from or alignment with the EU standards and make a formal recommendation to the Secretary of State so that the final decision will be made taking into account those views.

I agree with the noble Baroness, Lady Randerson, on the importance of parliamentary scrutiny. This SI in itself does not give rise to further delegated powers but covers the publication of NTSNs. Future SIs in this area would be subject to the negative procedure because they will be made under the Transport Act. However, there is always the ability to debate them on the Floor of the House, as we are doing with this one.

If divergence is being considered—which, of course, is the main, understandable concern of industry—we will first notify Parliament through making a Written Ministerial Statement before any final decisions are made. That Statement will refer to the report from the RSSB consultation process and outline the nature of the proposed divergence, the rationale for it and set out the potential costs and benefits. As I say, this SI in itself does not lead to further divergence. However, if it is decided that divergence would be to the benefit of the UK industry and passengers, that would be consulted on and clearly set out to Parliament.

The noble Baroness, Lady Randerson, mentioned the impact assessment. It provides a narrative analysis rather than a quantified assessment of net costs and benefits to businesses. That is purely because we do not yet know what any future divergence might look like. On day one, we are replicating standards in the EU word for word. We are simply publishing them through the new NTSN process. We do not yet know what, if any, future divergence there will be, so it is not possible to understand what the costs may be. Future divergence would be subject to a full impact assessment, and at that point we will be able to understand the costs and benefits.

Common Rules for Access to the International Market for Coach and Bus Services (Amendment etc.) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Thursday 21st March 2019 Lords Chamber

[Lord Eames (CB)]

My Lords, I welcome the explanation given to us about the complicated nature of this SI. I shall speak particularly about the local situation in Northern Ireland. Once more, this is an example of how that part of the UK will feel the full force of Brexit, not only for Translink and the regular services that it provides across the border, which was once simply the border with the other part of Ireland but will now become the frontier with the EU. There is genuine anxiety in the industry about, first, the complicated nature of running regular services across the border and, secondly, the many local employers of small coach services that are frequently—especially, as the noble Baroness, Lady Randerson, said, as we come into this season—crossing the border, going into the Republic and vice versa.

As the Minister reminded us, there will be a separate SI, but I suggest that there is bound to be an overlap between what this SI covers and the individual SI for Northern Ireland. If Northern Ireland is part of the United Kingdom there is bound to be that overlap. Can the Minister reassure the House that special attention will be paid to Northern Ireland’s difficulties in this respect, since we will feel the full force of Brexit when it comes?

[Lord Tunnicliffe (Lab)]

My Lords, this SI is a little complex. It seems to be about timing. One gets an uncomfortable feeling that the Government had tackled aviation, marine and road haulage when suddenly someone woke up and said, “We’d better do coaches”. As you read through the Explanatory Memorandum, initially it seems to be an asymmetric situation where EU operators get all the provisions that they have now but UK operators do not, and then you turn to paragraph 7.3, which says:

“The EU have proposed a legislative change that will extend many of the provisions of the existing market access Regulations till 31 December 2019”.


Extending “many” means that it does not extend all. Could the Minister spell out which provisions of the existing market access are not allowed under this agreement? Has the agreement become EU law? I believe the answer is yes, but I would like her to spell that out in simple language. If it is the law that I am thinking of, it declines and then expires on 31 December 2019.

Having not declared any interests in coach operations, I confess that I know nothing about the Interbus deal. Could the Minister spell out what it will mean if it is fully ratified, as is implied in the Explanatory Memorandum? Will it give UK operators the same freedoms as they have now? If not, could she spell out the freedoms that they will not have? Will the Interbus agreement supersede the necessity for the special arrangements that I believe the EU has introduced?

[Baroness Sugg]

I thank noble Lords for their contributions. Turning to the questions on consultation from the noble Baroness, Lady Randerson, I say that the aim of this legislation is to maintain the status quo as far as possible through technical amendments to the existing regime. We have engaged with the Confederation of Passenger Transport, as the main industry representative, and the Federation of Passenger Transport Northern Ireland, the FPTNI. The industry has been supportive of the application to join Interbus, as this will give liberalised, unlimited access to run occasional services in the EU, which covers the vast majority of activity by GB operators. There is little use of cabotage on occasional services, because UK carriers are normally taking the same group of passengers to a destination in the EU, then bringing them back.

We have been working closely with industry to make sure it is informed. While this SI makes technical changes, this SI, the EU regulation and the accession to the Interbus agreement together give maintenance of the status quo. Letters are going out to every operator which holds an international licence, to inform them about future processes. The trade association, the Confederation of Passenger Transport, is making members aware via social media, newsletters and email, and the information on GOV.UK which the noble Baroness referred to.

The noble Baroness asked about the effect on the International Road Freight Office. Relatively few authorisations are required by EU operators. We expect there to be about 150, rather than 600—600 is the top end of the estimation. There is a simple process; operators have to pay only for postage and, possibly, translation. Some operators already apply directly through the IRFO rather than their home member state, so we do not expect there to be a huge effect.

There is an issue with this two-day gap. It might be helpful if I explain why we have it. The Interbus agreement can come into effect only on the first of the month. If we had laid the SI earlier, the agreement would still have come into effect on the first of the month, as the agreement itself specifies that. We cannot become a contracting party until we leave the European Union. We are working closely with the European Commission to find a solution to overcome that gap in provision—

--- Later in debate ---

[Lord Tunnicliffe]

On 1 January 2020, by which time the EU regulation will have expired, and assuming there are a satisfactory number of signatures to the Interbus agreement, to what extent will the situation for UK operators be different from the situation today?

[Baroness Sugg]

On 1 January 2020, assuming that we have all the signatories that we need and the Interbus agreement is in place, the main issue will be cabotage, as the Interbus agreement does not cover cabotage. UK operators will not be able to provide cabotage in the EU. There would be a separate arrangement for that for Ireland, but UK operators will not be able to do it. There is very limited UK-operator cabotage in the EU; as I said, most journeys go out and come back. However, that is the main implication and the main difference.

Merchant Shipping (Standards of Training, Certification and Watchkeeping) (Amendment) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Monday 18th March 2019 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I thank the Minister for her explanation.

The first of these two SIs relates to training standards in the industry and is based on EU directives 2008/106/EC and 2012/35/EU. The EU-wide process for the recognition of certificates has been very important—indeed, fundamental—in raising safety levels in an industry where international crews are the norm. In 2016, as the Explanatory Memorandum helpfully tells us, 3,410 UK seafarers had certificates enabling them to work in EU and EEA-registered vessels. The SI adopts the usual procedure, replacing “EU Commission” with “Secretary of State”.

It will not surprise the Minister to hear that I am concerned about the reduction once again in transparency in the process because the SI gives the Secretary of State responsibility for the withdrawal of recognition of parties to the STCW convention where standards are not met. What is the procedure by which the Secretary of State will come to that conclusion? Who will advise the Secretary of State? Will there be any right of appeal? We are replacing a well-established, well-understood European process with a process bathed in mystery. Perhaps the Minister could explain whether any further regulations will set out the process and where any advice might be given to the Secretary of State.

The Joint Committee on Statutory Instruments drew this SI to our attention because of its impact on seafarers. The UK will continue to recognise the certificates it currently recognises but there is no guarantee of the EU recognising our certificates in future. The 2005 directive established certificates of competency; each seafarer must have one, and have it endorsed by the flag state of the vessels on which they want to work. These are known as certificates of equivalent competency. Once the European Commission has approved a third country, other member states can, but are not obliged to, accept seafarers from that third country on their ships. That is an unusual discretion. How does it work in practice? How has it worked in practice until now? Is there a record of seafarers from a recognised third country not being accepted on ships from other EU countries? If there are cases where that has happened, which countries have chosen to exercise this power of discretion? Have we always accepted those certificates?

I am sure the Minister can see where I am going with this. My concern is that once we become a third country our seafarers may find themselves excluded by some EU countries, even though the European Commission has agreed to accept our certificates as compliant with STCW.

There is also my usual concern about how we keep up with the flow of information as the EU changes its standards. It is fine to say that we will hitch ourselves to the current standards, but keeping up with the list of countries recognised by the EU might be more complex than it seems. In this SI, the Secretary of State is given the power to add to or subtract from the list of recognised countries, so I ask the same questions again about that power. What will be the system for this? Where will be the transparency? Who will give the Secretary of State advice? I am even more concerned, because as usual there has been no consultation on this, and it involves individual seafarers. Although companies can be expected to keep abreast of all these changes, individuals should not be expected to have to do so.

I turn to the SI on passenger rights. Officials working in the Department for Transport must be losing the will to live during this whole process. As things descend into farce, it is probably difficult to keep abreast of the pace of these things, but I have to say that this is an unusually opaque Explanatory Memorandum. I draw noble Lords’ attention to paragraphs 2.8 and 2.9, which introduce us to the bunkers and Athens conventions in terms that suggest we chat about them over our cornflakes, so familiar are they to us all. I really grappled with this one; I raise this because if I have misunderstood it, it is because bits of it are particularly complex.

In practical terms, this SI seeks to continue current arrangements on passenger rights and on insurance. I have a technical question for the Minister. In the EU rules on this, the compensation for when things go wrong is currently dictated in euros. It is converted to sterling at the rate for the year ended 31 December 2017. Why are we using something pretty historical for this? It makes it look rather outdated before we start.

Once again, there has been no consultation on this. I want to make an important point in relation to the comments on small business. One after another of these SIs say that there will be minimal impact and only familiarisation costs to SMEs. I am beginning to be extremely concerned that, within each sphere—here we are on maritime—individual businesses are expected to absorb and to familiarise themselves with a number of SIs, not just one. The pace of change for them is adding up to something substantial, and the Government have not consulted them on it.

I also want to ask my usual question: how will the Government keep up with changes that happen in the EU on this? Passengers’ rights are very dear to people’s hearts. If there is any shadow of thought that we in this country have inferior rights, passengers would be extremely angry—and rightly so. Therefore, I am keen that we know how the Government intend to keep pace with change. What will be the process by which the Secretary of State makes decisions to change things when necessary? On whose advice would he act?

[Lord Tunnicliffe (Lab)]

My Lords, there is a certain disadvantage in following the noble Baroness, Lady Randerson: she has usually nicked most of my points. I will therefore highlight only a couple.

Paragraph 3.2 of the Explanatory Memorandum states that,

“EU recognition of United Kingdom certificates will be at the discretion of Member States”.

Clearly, here we have a non-reciprocal situation, where we are providing rights to the EU and it is not necessarily reciprocating. Will the Minister explain the processes the Department for Transport intends to carry forward? Is there reciprocity, as we desire, or will it have to be done state by state? Can it be done through some comprehensive agreement with the EU? What efforts are being made at the moment to try to get a reciprocal agreement?

I share the concern of the noble Baroness, Lady Randerson, about the Secretary of State. To be even-handed, I should say that that is any Secretary of State—one is tempted to ponder on this one in particular, but I will set that to one side. I could not find it in the Explanatory Memorandum, but I may have overlooked it: what political oversight is there in the exercise of the Secretary of State’s powers? If there is none, how can there be transparency in the process? To pick up the noble Baroness’s point, how will he be advised?

Turning to the very important issue of passengers’ rights, although the Explanatory Memorandum is a document in the public domain, it is not one dear to people’s hearts, whereas Hansard is. Paragraph 7.1 of the Explanatory Memorandum seems to say that passengers’ rights will be identical. Will the Minister tell us in plain language that they will be identical, so that it can be included in the formal record?

On paragraph 7.3, I share the view about opaqueness. It talks first about EU member states that are not state parties to the Athens convention. Elsewhere, one got the impression that all EU member states were parties now to the Athens convention. Of the member states, which are not parties to the convention? It tells us little about how the Athens convention works and gives appropriate support and assurance to passengers. Will the Minister spell out what the convention does for passengers? I know it limits compensation, but how does it ensure that compensation will be paid? I recognise that the answer to that might be rather complex, so I am content for the Minister to write to me on that subject.

[Baroness Sugg]

I thank noble Lords for their consideration of these draft regulations.

The noble Baroness, Lady Randerson, pointed out the high quality of the seafarer qualifications, and we will continue to recognise them in accordance with the international STCW convention, so standards will not slip and will not be affected by our departure from the EU. To work on a UK-registered vessel, EU seafarers will still need to obtain a UK certificate of equivalent competency.

On the position of UK seafarers on EU-flagged ships, it is in the interests of both the UK and the EU to avoid any barriers to UK seafarers continuing to make the important contribution that they already make. If there is no deal, endorsements issued before withdrawal by EU countries to seafarers who hold UK certificates of competency will continue to be valid until they expire. So, if you are a UK-trained seafarer with an endorsement already issued by an EU country, you will be able to continue working on board vessels flying the flag of that country until the endorsement expires.

We are seeking to ensure that UK seafarer certificates continue to be recognised through the well-established EU process for recognising third-country certificates. That will provide continuity for UK seafarers. As I have said, we have committed to recognising EU countries’ certificates, and that approach has been welcomed. The Commission issued a technical notice in January 2018 setting out that the UK would be treated as a third country and that member states would need to apply to recognise UK certificates under the relevant provisions in directive 2008/106. It is not possible to apply for this recognition until the UK becomes a third country, and the Commission can take around 18 months to process the application. However, member states can recognise certificates in the meantime, and we are confident that the EU will accept that UK training is of a high quality, will want to recognise us as a third country and that major commercial flags such as Malta and Cyprus will continue to recognise the UK certificate of competence. When we raised the issue with all of those countries, they have been positive.

As to the impact on day one, the vast majority of UK seafarers will already have a current certificate of competency which, as I have said, will be valid for up to five years.

On the powers of the Secretary of State to remove recognition from countries, we will be advised by the MCA. The Secretary of State currently makes decisions based on its advice and so that will not change. The decisions will be based on all the evidence available that that country meets the STCW requests. The normal administrative law provisions apply so that the Secretary of State’s decisions can be challenged in court if necessary.

No formal consultation was carried out on the STCW SI, but the department has worked closely with shipping representatives and the trade union Nautilus International. The Government also issued technical notices in September to inform seafarers and companies about the approach. The department has met with the general secretary of Nautilus on several occasions; the MCA has regular contact with it and with the Chamber of Shipping on the whole SI programme. The Shipping Minister recently met with Nautilus and the Chamber of Shipping, which was described as productive by Nautilus. Both organisations support the continued recognition by the UK of certificates issued by EU member states.

On passenger rights, the noble Baroness, Lady Randerson, asked about the conversion rate. This was done using the average exchange rate for the year ending 31 December 2017 and the figures were rounded. Therefore, the €80 and €6 in EU regulation 1177 becomes £70 and £5, and the €21,000 reference in EU regulation 392 becomes £18,500. In each case, those roundings work to the benefit of passengers. The conversion was carried out at the beginning of the drafting process according to cross-government guidance, and at the time 2017 was the last full year available. However, as the noble Baroness said, the exchange rate has fluctuated since but, because of the rounding, the effect on passengers is minimal. Those amounts were fixed and we do not have the power to vary them other than through primary legislation.

Passenger rights and entitlements will be the same as they are today. I hope that is plain English enough for the noble Lord, Lord Tunnicliffe.

No formal consultation was undertaken on the passenger rights SI, but the department consulted a range of stakeholders in 2018 when preparing the post-implementation reviews of the Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012 and the Merchant Shipping (Passengers’ Rights) Regulations 2013, which implement the relevant EU law in the UK. In both cases, all stakeholders expressed support for the 2012 and 2013 regulations and a desire to see the current rules retained in their existing form.

On further delegated powers to the Secretary of State, the draft regulations transfer powers which currently enable the Commission to amend certain elements of regulation 392/2009, which applies the Athens convention. The powers transferred to the Secretary of State are limited to amending the liability limits to incorporate changes made by the IMO Athens convention and to other non-essential elements of the regulation. No changes to the EU regulation have been made since it came into force, and it is not expected that we will use this power frequently. We will continue to monitor developments in the implementation of the Athens convention at international and EU level. Any other changes to that regulation will need to be made through primary legislation.

The noble Lord, Lord Tunnicliffe, asked about the Athens convention. It establishes a regime of liability for damage suffered by passengers on a sea-going vessel. It declares a carrier liable for damage or loss suffered by a passenger if the incident causing the damage occurred in the course of the carriage and was due to the fault or neglect of the carrier. As far as loss or damage to luggage is concerned, the carrier’s limit of liability varies depending on whether the loss or damage occurred in respect of cabin luggage, a vehicle or other luggage carried in or on it. The key requirement is that the registered owner of a vessel must maintain compulsory insurance. Passengers travelling on ferries to or from the EU after exit will continue to be protected, as it applies to all passengers regardless of nationality.

Under regulation 1177/2010, passengers have the right to information, refunds and rerouting, in some cases, and compensation in most circumstances in which their journeys are delayed or cancelled. The regulation also grants the right to assistance and travel at no extra cost. I hope that is a sufficient explanation of what the Athens convention does. The EU regulations were harmonised and brought it into UK law. The new regulations we are discussing transfer them.

The noble Lord, Lord Tunnicliffe, also asked which member states have not yet ratified the convention. A number of member states have not ratified the convention, despite it having been in force for almost five years. They are Austria, the Republic of Cyprus, the Czech Republic, Estonia, Germany, Hungary, Italy, Luxembourg and Poland, but only Cyprus, Estonia, Germany, Italy and Poland have maritime ports. Only 21 ships made that journey and it is very easy to get a certificate of competence. We are in contact with those countries which have not ratified the Athens convention.

I hope I have managed to address the points—

[Lord Tunnicliffe]

I asked whether there is any parliamentary involvement in the Secretary of State exercising his rights under either of these instruments.

[Baroness Sugg]

On the first instrument and the Secretary of State’s right to remove a country from STCW, I do not believe there is any parliamentary involvement. That would be based on the MCA, as previously. On the delegated powers under the passengers’ rights obligation, that will depend on which regulation he is using. The powers transferred to the Secretary of State are limited to amending the liability limits to incorporate changes and other non-essential elements of regulation. Any other substantial changes will need to be made through primary legislation, which will be subject to parliamentary scrutiny. There are no further delegated powers through the STCW regulations.

I hope I have managed to address the points that noble Lords have raised during the debate. I will perhaps write to the noble Lord to clarify the last point on parliamentary scrutiny.

This completes the programme of maritime SIs that noble Lords will consider. I thank the policy officials and legal advisers to the DfT—who I hope are not losing the will to live—for their hard work and diligence in both producing the SIs and briefing the Minister on them. The proposed changes made by these draft regulations are appropriate to ensure that retained EU legislation relating to seafarer qualifications and passenger rights work effectively in the UK from day one in the event of a no-deal exit.

Licensing of Operators and International Road Haulage (Amendment etc.) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Monday 18th March 2019 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I start with the big question, as I see it: where does this dovetail with ECMT permits? We have already been through those in relation to an SI. They are already established as part of our no-deal preparations, and there has already been feedback on the fact that only 5% of the industry will be covered by them. So is this an either/or, or is it an either/or that kicks in after December this year? Perhaps the Minister could clarify for me exactly where this regulation stands in the whole thing.

In essence, and I say these words carefully, this SI substitutes a community licence applied for in the UK with a UK licence for the community. No wonder the public are beginning to get frustrated with the whole thing. Given that this applies to thousands of hauliers—thousands of small haulage firms, many with one or two vehicles—they could be forgiven for getting confused over this. That innocuous though confusing change of name hides a fundamental potential change in their rights to operate within the EU.

On Northern Ireland, I have very serious concerns about cabotage and cross-trade. Paragraph 6.5 of the Explanatory Memorandum makes several references to future arrangements in Northern Ireland. There is of course a great deal of cross-border haulage between Northern Ireland and the Republic. The situation is very nuanced because goods haulage is very different from passenger transport. What will happen to these arrangements if Northern Ireland is caught in the backstop? Generally these SIs say, “We’re sorting Northern Ireland separately”, but this one incorporates arrangements for Northern Ireland. That led me to wonder how it will operate if Northern Ireland is caught in the backstop. Am I right to assume that in that situation these arrangements would cease to apply?

Rather obliquely, paragraph 6.6 of the Explanatory Memorandum says that the amendments made by the SI also apply to coach and bus services, but paragraph 7.9 says that there is separate provision for international passenger transport. Could I have an explanation of that?

Importantly, regulation 1071/2009 allows member states some discretion to impose additional requirements of operators, and once again the Secretary of State is to get that power. I repeat my usual questions. What about transparency? On whose advice would the Secretary of State exercise this power? How would it be done? Would there be a role for Parliament? Would there be a negative or an affirmative process? I know I ask this every time, but I assume that the answer is different on each occasion.

Applications for Community licences currently go to the traffic commissioners. Will they maintain that role for UK licences in future? If so, what about resources? I am well aware that the traffic commissioners have a very broad responsibility and their organisations are usually extremely thinly staffed. There is the usual hope that the EU will continue to recognise our rights as usual, but there are EU proposals on this and, as I understand it, they do not give us full cabotage rights. They also extend only to the end of this year.

The Explanatory Memorandum says that it is hoped that this SI will be superseded by full legislation by the end of the year. As time goes on, the end of this year looks remarkably soon for there to be even more legislation on this. To clarify, is this EU offer for nine months after we leave for a rolling nine months following Brexit, which will kick in only when we leave, or has it offered this up to the end of this year and that is it?

Once again, there has been no consultation. That is especially serious in this case, because thousands of hauliers who make their living in international haulage will not be able to rely on a Community licence in future. This is not a minor change; it is fundamental. Again, SMEs are not especially taken into account.

Finally, if you currently have a Community licence, will you have to reapply for it? Suppose you have a Community licence that is valid to this end of this calendar year: are there any events or potential Brexit scenarios, foreseen or unforeseen, that could lead to hauliers having to reapply for their licence within that timeframe? Everyone expects that they will reapply for their licence at the end of the period covered, but is there anything that could happen that would interrupt that licence? Or are hauliers right, and can be confident to assume, that if they have a valid licence until the end of this year, for example, they can carry on working until then? I would be grateful for clarification on that.

[Lord Tunnicliffe (Lab)]

My Lords, I took a slightly more optimistic view of this SI than the noble Baroness, Lady Randerson. However, clarification in plain language will help. Paragraph 2.7 of the Explanatory Memorandum says:

“The UK operator licensing regime will generally remain as at present”.


I wonder whether we could have simpler language than that. My understanding, taken with recent agreement in the EU, is that the situation will be fully reciprocal. I will say it again, because it is a question to which I would like a direct answer. The Explanatory Memorandum uses terms such as “provided that”, which enthused me to look up the European Commission—I will not do this again. On 19 December 2018, it published a regulation of the European Parliament and of the Council on,

“common rules ensuring basic road freight connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union”.

At the end it says that the regulation applies until 31 December 2019, and that it was “done at” Brussels. I do not understand EU law. Is that now a piece of EU law? Does it, together with this SI, mean that in all respects, except the names of these licences, the situation for operators is identical to where we are now, with, of course, the overriding importance that the agreement of the EU is only until the end of the year?

[Baroness Sugg]

I again thank noble Lords for their consideration of these regulations. The noble Baroness, Lady Randerson, asked about the hot topic of ECMT permits. The European Commission has published the draft regulation on road transport. It was approved by the European Parliament last week. We expect it to be approved by the Council of Ministers this week—tomorrow, in fact. We welcome the substance of these proposals, which will ensure that the majority of UK hauliers can continue carrying goods into the EU for the rest of the year without needing an ECMT permit, providing that we reciprocate and provide equivalent rights to EU hauliers, which we are doing through these regulations.

[Lord Tunnicliffe]

Am I right in understanding that that also includes the cabotage allowance?

[Baroness Sugg]

The Commission’s proposal includes the right for UK hauliers to complete point-to-point journeys and transit journeys. It also offers limited cabotage and cross-trade journeys. Cross-trade journeys are limited compared to what UK hauliers can do now, which is three movements in seven days. They will still be allowed to do two cross-trade or cabotage operations on every international trip for the first four months of these regulations, then one cross-trade or cabotage operation every trip during the next three months.

Maritime 2050 Strategy

Lord Tunnicliffe Excerpts

Wednesday 13th March 2019 Lords Chamber

[Baroness Sugg]

My Lords, I believe that a global competition is running on that, but a British consortium is bidding. As I said earlier, we published the National Shipbuilding Strategy in 2017 which will help transform naval and commercial shipbuilding and the related procurement process. It details a new and competitive approach to the delivery of shipbuilding in this country.

[Lord Tunnicliffe (Lab)]

My Lords, there seem to be more than 100 recommendations in the report, along with 143 references to the Government. Just how much resource is the Department for Transport going to put into this project?

[Baroness Sugg]

My Lords, the noble Lord is right to highlight the many recommendations in the strategy. It contains commitments on how we are going to take action across the seven themes addressed in the strategy. Our priority is to ensure that the recommendations are implemented, with a focus on the next five years. I referred earlier to the publishing of road maps which will set out the plans, milestones and timing for the implementation of the recommendations. We have resources in place to deliver the strategy and of course we are also working closely with the industry to help deliver it. In terms of future funding, we are putting together a bid for the upcoming spending review which reflects our ambitions and the commitments made in Maritime 2050.

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

Lord Tunnicliffe Excerpts

Tuesday 12th March 2019 Grand Committee

I understand the reason for this statutory instrument, and I greatly regret the reason for it, but the system that is being put in place is less transparent, the standards will be less guaranteed and there are significant impacts on individuals working in the aviation industry. I am concerned that there has not been sufficient publicity about this aspect.

[Lord Tunnicliffe (Lab)]

My Lords, I make my usual statement that I deeply regret being here. I think the idea of leaving the European Union without an agreement is absurd. In many ways, this SI and the many SIs I have worked through illustrate just how bad a situation it will be, but assuming that we are leaving, or have to be ready to leave, the EU without an agreement, I have looked at this SI. Its thickness deterred me from reading it, so my comments are based on the Explanatory Memorandum. Having been in the industry, I look forward to the seminar that the Minister is no doubt about to give us on ICAO. She will no doubt explain how this statutory instrument answers many of the questions that have been asked. I am sympathetic to many of them.

I shall restrict myself to two issues. The first is the powers of the Secretary of State. I have dealt with an awful lot of these SIs, and they have the same general characteristic: the stuff that is handled by EU regulators gets handed to UK regulators, and the stuff that is handled by the Commission is transferred to the Treasury. As I understand it, the Treasury is a body in its own right that can make decisions as a body in its own right. In a sense, one would expect the Treasury to be equipped to make those sorts of decisions. Here, paragraph 7.4 of the Explanatory Memorandum states:

“Delegated powers in the Basic Regulation are transferred from the Commission”;


and it ends by introducing a role for Parliament:

“Regulations made by the Secretary of State would be subject to negative resolution procedure”.


Unfortunately, as you read the document, it implies that decisions will be made by the Secretary of State himself, as the natural person. Given recent history, I am not sure that Parliament should be that comfortable with the idea of giving decisions to this Secretary of State, as the natural person. I assume it will not work like that. I assume the department and the Secretary of State will set up systems to advise the Secretary of State to analyse the issue and make sure that when we come to examine the regulations—if we choose to, under the negative procedure—the decisions would be backed up by a proper decision-making system, which the Minister will be happy to present to us. I hope we have reassurance on that point. To some extent, that covers one of the points made earlier in this debate.

Reading through the Explanatory Memorandum, I also stumbled across paragraph 7.6, which says:

“Corrections made include … removing provisions dealing with the relationship with and cooperation between EU Member States”.


I know we have had two tragic events recently, but the tremendous improvements made over recent decades in civil aviation safety absolutely depend on worldwide, international co-operation. Therefore, I hope that that paragraph is a technicality and that it will not change the attitude of the British Government to continuing to pursue this strong co-operation through the international bodies. I ask the Minister: what procedures will be put in place and what agreements will be sought to continue to optimise safety through international co-operation?

[Baroness Sugg]

My Lords, I thank noble Lords for their consideration of this draft instrument. Before I move on to the SI, I am very happy to give noble Lords an update following the tragic accident in Ethiopia. The UK CAA has been closely monitoring the situation, as has the department. It made an announcement just after lunchtime today that it does not currently have sufficient information from the flight data recorder, so as a precautionary measure, it has issued instructions to stop any commercial passenger flights with that aircraft for any operator arriving, departing or overflying UK airspace. The safety directive will be in place until further notice, and of course the CAA remains in close contact with EASA and industry regulators globally.

It might be helpful to start by reiterating our position on EASA. We seek continued UK participation in EASA. This will help to ensure high levels of safety, as well as facilitating trade between the UK and the EU. We have the second largest aerospace sector in the world and the largest aviation sector in Europe, so it is not in any of our interests not to participate. It is a critical industry and, of course, safety is critical. This SI is not intended to remove us from EASA; that is a consequence of a no-deal Brexit. We want to see continued participation, but it is not just up to us to decide that. We very much hope that the EU will want us to continue participating in EASA. As the noble Baroness said, we have been deeply involved throughout its history. We very much hope that the EU will agree to our continued participation. However, we need this SI to be in place to ensure that we have a contingency plan; that is what this SI gives us. We very much hope that we will agree a deal and see continued participation in EASA. If we are in a no-deal situation, we expect to move into conversations about our future air transport agreement very quickly, which will also cover safety issues.

In response to the noble Baroness, Lady Randerson, who highlighted our response to the SLSC back in December, the mirror image of these regulations is the EU safety regulation. The EU is in the process of adopting the regulation on aviation safety. It will be voted on in the European Parliament tomorrow and at the Council next week. It has already been agreed at the Committee of Permanent Representatives and we expect no issues with its adoption. That EU regulation is ultimately designed to prevent disruption to the EU industry, but it will be beneficial to us as well. It has three strands. First, it will extend the validity of certificates issued by EASA to UK-based design organisations. That extension is initially set at nine months, but the Commission is empowered to extend it if it proves necessary. Secondly, it provides for the continued validity of authorised release certificates for products, parts and appliances, certificates of release to a service issued on completion of maintenance, and airworthiness review certificates issued prior to exit day by organisations approved by the CAA. Finally, it provides that examinations taken at CAA-approved training organisations prior to the entry into force of the regulation will remain valid. We think that the EU’s regulation, as ours, is a sensible contingency measure to have in place for a no-deal exit. It is not a permanent solution, and we very much hope that we agree a deal, and, if we do not, that we are able to negotiate further on safety regulations.

The noble Lord, Lord Berkeley, raised the issue of the banned airlines list. I agree that this is a very important list to have. On exit day, the UK list will be established and it will mirror the current EU banned list. The list will be published on the CAA’s website, and it will be updated to reflect the imposition of operating bans. Operating bans are imposed by the refusal or revocation on safety grounds of permission for an airline to operate to the UK or by the refusal or revocation of a third-country operator authorisation. As the noble Baroness, Lady Randerson, pointed out, unlike the EU list, the UK list is not contained in legislation because it does not itself impose the bans, but reflects bans that have been imposed by the exercise of statutory powers. We will, of course, aim to keep the UK list consistent with the EU list as far as possible, and the decision on any operating bans will always be based on advice from the CAA.

Aviation Noise (Amendment) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Tuesday 12th March 2019 Grand Committee

[Lord Tunnicliffe (Lab)]

My Lords, I will not repeat at length the points made by my noble friend Lord Berkeley and the noble Baroness, Lady Randerson. I broadly agree with them and will certainly be listening with care to the Minister’s response. I do, though, come back to the issue of the Secretary of State exercising his powers. We got a clear answer on the previous SI that, in exercising his powers under that statutory instrument, he would consult the CAA. We need something a good deal more complex for this issue because noise is quite different in character from safety. Realistically, a member of the public does not have a useful or valid opinion about airline safety issues, but on noise a member of the public is exactly who it is all about. The issue is about communities around airports.

There are two areas that I would like the Minister to expand on. First, from what parts of government will the Secretary of State receive advice in exercising his powers? Secondly, I would like an assurance on matter of consultation. As far as I can tell, the statutory instrument seeks as far as possible in this nightmare scenario to maintain the status quo, but any changes to these regulations that the Secretary of State makes—using, once again, the negative procedure—will affect the general public in all the communities around airports, and of course there are also the additional issues of practicality, cost and so on. This is a difficult and complex political subject, so we need assurances that at any time in the future when the Secretary of State uses his powers under this instrument, he will conduct a full consultation to get all proper inputs to the decision-making.

[Baroness Sugg]

I thank noble Lords for their consideration of this statutory instrument. The regulations do not set noise policy; noise standards for aircraft are set by ICAO and we will continue to follow them.

On the point about the competent authority, last year we laid regulations that appointed competent authorities in England and Wales. The implementation provides for the local planning authority to be the competent authority when an application for any change is brought under the Town and Country Planning Act, but it also allows the Secretary of State for English airports or Welsh Ministers for Welsh airports to be the competent authority for called-in applications. Therefore, that matter is slightly separate from this SI.

The noble Baroness mentioned the balanced approach. Regulation 598 requires the competent authorities to take account of the balanced approach, and that requirement is kept by this SI. It will ensure that the balanced approach consists of identifying noise problems at specific airports and giving consideration to various measures that might be available to reduce noise. That is being carried over in its entirety.

Expansion at Heathrow is conditional on a package of mitigations. The NPS makes clear that noise mitigation measures should be put in place to ensure that the impact is limited. Again, that is going through the planning process following the judicial review process. We of course recognise that aviation noise is a key concern for communities living near airports. I regularly meet community groups and MPs to discuss this. We have played a leading role at an international level in relation to noise standards, and we will continue to promote further improvements in this area.

This SI does not change noise policy; it is concerned only with corrections as a result of EU exit. It does not impose restrictions; it is just a framework. We are consulting more widely on our noise policy, which we set at a national level through the aviation Green Paper consultation which we published in December. In that, we set out a number of policies designed to reduce noise and its impact, and that is how we will set our noise policy in future.

On consultation, in 2017 we consulted on proposals for appointing competent authorities, and the Scottish Government conducted a consultation on their proposals earlier this year. However, we have not consulted communities on this. The changes in Regulation 598 will not have a direct impact on overflown communities. They will ensure that the correct procedure is followed when operating restrictions are considered or it is proposed that they be imposed, but they will not change things for communities per se. As I said, that is being dealt with through the aviation strategy consultation.

There is a delegated power which provides for the Secretary of State to make secondary legislation under the negative procedure. It is about providing technical updates to the regulations, but again that power is limited to such updates to the noise certification standards and methodology indicators relating to the assessment of noise impact at an airport. Again, those updates are limited within the regulations to account for changes to relevant international rules.

As with the previous SI that we discussed, we will continue to follow the international rules. We have been leading the way with our noise policy and are suggesting further measures to improve it through the consultation. We will publish our final aviation strategy later this year, which we hope will address the understandable concerns of communities around the airport. However, that noise policy is not directly relevant to the SI we are discussing, which simply ensures that in the event of a no-deal exit from the EU there will be continuity of aircraft noise standards and certification and of the process when operating restrictions are considered at airports.

Aviation Statistics (Amendment etc.) (EU Exit) Regulations 2019

Lord Tunnicliffe Excerpts

Tuesday 12th March 2019 Grand Committee

[Baroness Randerson (LD)]

My Lords, airport operators currently provide their statistics to the CAA, which passes them on to Eurostat. This is to be replaced, according to this SI, with a system whereby airport operators give the information to the CAA, which then provides that data to the Secretary of State if directed—not by legal obligation but if directed.

There are four problems with the SI. First, statistics collected on a national basis are much less useful and meaningful than international statistics. As the noble Lord said, there is no guarantee that this information will be shared internationally.

Secondly, there is no obligation on the Secretary of State to even want to see the statistics. What will he do with them? There is no obligation on the Secretary of State to publish them. Therefore, one has obvious concerns about transparency. Statistics should be important for the Government; they are certainly important for the public and the industry itself to monitor performance. The CAA already collects this data, but it will be of much less use for comparative purposes as matters stand in the SI.

The third problem is the impact of changing rules on exactly how the data is expressed and collected. This is the kind of internal thing that happens in any organisation. If you change the order of the questions or one or two words in the questions, you impact the results. It does not matter that much if you are looking across the piece and everyone is obeying the same rules, but we will be collecting our data on a different basis. I more or less guarantee that, within a year or two, we will be told that our data is no longer comparable because of differences in collection procedure.

Finally, there is the new power of the CAA referred to in the SI to impose a £5,000 fine if an airport does not provide data. I am not entirely clear about this, and I would be grateful if the Minister could clarify. I believe that this is a new power; I am not sure that the CAA has it at the moment. If it does, what is the fine, because £5,000 seems derisory as a fine on a large organisation for failing to provide data? It would cost Heathrow Airport or Gatwick Airport a great deal more than £5,000 to collect the data, so there would be an incentive not to bother. Where does £5,000 come from? Has it been thought through as a penalty that should be paid by a large commercial organisation? It does not seem worth it.

[Lord Tunnicliffe (Lab)]

My Lords, the points made by my noble friend Lord Berkeley and the noble Baroness, Lady Randerson, are exactly right. I look to the Minister to answer them. I can see why we would want to avoid an obligation, but I cannot for the life of me see why we would not want voluntarily to co-operate with Eurostat. This obviously is a wider question for government as a whole, but in an open society we have to believe that sharing information is a good thing, not a bad thing.

I formally object to the £5,000. It clearly is not within the spirit of the withdrawal Act and therefore the Minister has not prayed that Act in aid but has prayed in aid the draconian European Communities Act 1972. I was not here in 1972 and I have not recently brushed up on the detail, but that Act was created to implement European law. This is not creating European law; it is smuggling in a little correction. I am not going to cause a constitutional crisis by objecting to it, but the Government should not have done it.