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

Lord Berkeley Excerpts

Thursday 21st March 2019 Lords Chamber

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

My Lords, in moving the regulations I will also speak to the Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations 2019. These regulations are being made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed in the event that the UK leaves the EU without a deal. The regulations fix deficiencies in two sets of domestic railway regulations and EU implementing legislation: the Train Driving Licences and Certificates Regulations 2010, the TDL regulations; and the Railway (Licensing of Railway Undertakings) Regulations 2005, the operator regulations.

As part of the measures aimed at liberalising rail markets, the EU introduced standard documentation for train driving licences and rail operator licences. These documents are valid across the European Economic Area. The Office of Rail and Road—the ORR—is responsible for issuing train driving and operator licences in the UK. Subject to meeting certain criteria, such as medical and competence requirements, the ORR will issue a train driving licence valid for up to 10 years. Train drivers also need a certificate, issued by the operator, confirming that the driver is competent to drive a certain type of train on the infrastructure. Operator licences are issued subject to the operator meeting certain conditions, including financial fitness and having necessary insurance cover. In Northern Ireland the Department for Infrastructure is the licensing authority.

The Train Driving Licences and Certificates (Amendment) (EU Exit) Regulations amend the TDL regulations and three pieces of EU implementing legislation. The regulations will ensure that the train driving legislation will continue to function after exit day by making a number of technical changes. They remove reporting requirements to the Commission, references to member states and functions reserved for the EU Commission and the European Union Agency for Railways. The regulations also amend the definition of a “train driving licence” so it refers only to ORR-issued train driving licences. In addition, changes are needed to ensure that licences issued in Northern Ireland are valid for use in Great Britain and to make corrections to the EU implementing legislation that applies to both GB and NI.

The Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations make similar technical corrections, removing references to member states and replacing references to EU legislation with references to domestic legislation. The most significant amendment is to rename the “European licence” as a “railway undertaking licence”, though the cost, criteria and processes for obtaining a licence will not change. The draft regulations also revoke implementing regulation 2015/171. This EU regulation sets out a standard template for the form of an operator licence and details on the procedure of applying for a licence. These will not be required post exit as this detail is already incorporated into the ORR’s procedures, which are published on its website in accordance with the operator regulations.

Both sets of regulations also make transitional provisions that recognise existing European documentation, issued in EEA states, for a maximum of two years after exit day or until it expires, whichever is the sooner. In short, existing train drivers and operators providing services in Great Britain will not have to take any immediate action if the UK leaves the EU without a deal, regardless of where their documents were issued. There are a small number of drivers in the EU using ORR-issued licences, which will not be automatically recognised in a no-deal scenario. Departmental officials have worked with the regulator and operators to ensure that these drivers are aware of the need to obtain an EU licence. There are also UK operators providing services in the EU. All these operators already have licences issued in the country they are providing services in, so will be unaffected.

These draft regulations support the smooth continuation of cross-border services, such as Eurostar, by ensuring that EU-licensed train drivers engaged in cross-border services will continue to be able to operate in the UK. The Government are actively engaging with a range of European counterparts, including relevant member states, to secure bilateral agreements for cross-border rail services. These discussions include arrangements for longer-term recognition of train driver licences and operator licences. Bilateral discussions are progressing well, and we are confident of having measures in place in time for exit day.

By removing certain administrative requirements, the draft operator regulations technically widen the scope of who can be charged an application fee by the ORR for an operator licence and of who could be captured by the existing criminal offence of driving or operating on the railway without an appropriate licence. Consequently, these draft regulations are subject to the affirmative procedure. In Northern Ireland, the role of issuing these licences falls to the Department for Infrastructure and a separate instrument is being taken forward on behalf of Northern Ireland.

We have worked closely with the ORR and have engaged with industry to provide as much certainty as possible. The regulations are an important part of our no deal preparations, providing clarity for business and certainty for drivers. I beg to move.

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for bringing these regulations to the attention of the House. We have only got a week to go, and if we do not pass them today there may not be any trains running after 29 March—so well done the Department for Transport for leaving it to the last minute.

I have a couple of questions on both SIs. On the licensing of railway undertakings regulations—this is not clear to me and maybe this is not part of these regulations—I was talking to a train operator, from a UK company which has a licence in this country and also operates railway services in other member states, who explained that the company was having trouble in finding out whether its UK licence, in other words its licence to operate in the UK, would be valid in other member states after Brexit. Such companies try hard, often in competition with other incumbents, and it is a strain on their business and management set-ups if they still do not know whether they will be able to operate, either under a new franchise or in continuation of an existing one, after next week. I note that in paragraph 7.3 of the Explanatory Memorandum, as the Minister said in her introduction, there is a two-year window for these licences to continue. However, I am not sure whether that occurs in the other direction, and I would be grateful if she could respond to that.

I have two issues on the train driving licences and certificates regulations. Will UK drivers operating in France, the Channel Tunnel or other member states need to take driving tests in France and, if so, when? Is there a two-year window or when will it happen? This concerns not only Eurostar because in the future there might be other companies operating services through the tunnel, as well as rail freight. I declare an interest as having been chairman of the Rail Freight Group. These regulations add a great deal of bureaucracy, and I would be glad to hear what arrangements will be required for drivers with licences from other member states to come here. Is there a two-year window there?

My second comment relates to paragraph 7.8 of the Explanatory Memorandum. This SI removes the duty to inform the Commission on licences and safety matters and, presumably, vice versa. The statement that we do not need to tell the Commission anymore and it does not need to tell us is putting our head in the sand about anything to do with railway safety. Railways are rule-based operations and the more common rules we have the easier it goes. The transfer of information on safety, accidents, driver qualifications and so on, in the widest possible sense, is surely good for the safe operation of our railways. The text of paragraph 7.8 and elsewhere is drafted in a very negative way. Even if there is not a requirement—I think there should be—to exchange data, I hope the Minister will say that the ORR and the European Railway Agency should be encouraged to exchange data and participate in putting it together in common, European co-ordinated, long-term information about the safety performance of railways over the years. I look forward to the Minister’s response.

[Lord Snape (Lab)]

My Lords, the House will be grateful to my noble friend for tabling this Motion to Regret—

--- Later in debate ---

[Baroness Sugg]

I thank noble Lords for their consideration of these draft regulations. I agree with all noble Lords that sharing information is very important, not least because of safety. There will still be a power, rather than a duty, to share information on train driving licences with other member states. That will enable mutual sharing arrangements to be put in place. It is our long-term aspiration to continue to share that information.

On numbers of driving licences, the vast majority of people driving trains in the UK have an ORR-issued licence. There are around 250 drivers in the UK who have licences issued under the EEA. Those licences will be recognised for up to two years. In answer to the point from the noble Baroness, Lady Randerson, it is up to two years because they may expire before then. If they do, they will need to be replaced. That two years is from exit day, which is currently defined as 29 March, but if that definition changes, it will be two years on from that.

[Lord Berkeley]

Going back to the Minister’s last comment about sharing information, paragraph 7.8 of the Explanatory Memorandum on train driving licences says:

“The duty to inform EEA safety authorities will be replaced by a discretionary power to provide such information for the two-year period during which European licences continue to be recognised, and then will cease altogether”.


That is not quite the same. I understand what she says about wanting to continue to share information, but that does not appear to be the intent of this document.

[Baroness Sugg]

I presume that that is the case because we have the two-year implementation period and our future relationship will be subject to negotiations. As I said, our long-term aspiration is to share that information. We think a legal duty is inappropriate, because another authority might refuse to receive information or co-operate, so we would not be able to fulfil that duty.