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

Lord Rosser Excerpts

Monday 13th May 2019 Lords Chamber

I conclude by saying once again that the Government are attempting to provide a continuation of the status quo while removing the obligations on passing information to the EU and the Commission. I understand their intention to do so, but I believe that it has inevitably led to a cobbled-together approach—a hotchpotch of inconsistent and cumbersome solutions. In the case of these three SIs, there is of course the additional inconsistency of having a different approach for Northern Ireland than the rest of the UK. I shall listen with great interest to the answers from the Minister. If she is not able to give me a reply this evening, because I am aware that I have asked a number of questions, I would be grateful if she could write to me.

[Lord Rosser (Lab)]

I too thank the Minister for explaining the content and purpose of these three statutory instruments, and for convening the meeting last week on them. We are not opposed to these SIs and their purpose, in view of the need to address the mess that the Government have got us into on our current and future relationship with the EU.

The three SIs are intended to address what are described as the deficiencies that would arise if our departure from the EU occurred with a certain degree of suddenness and without a withdrawal agreement. The “deficiencies” are referred to in the Explanatory Memoranda. The SIs amend the 2006 regulations and directly applicable tertiary legislation which brought into being requirements on EU member states designed to create a common regulatory framework for railway safety throughout the European Union. This has led to a harmonisation of the regulatory framework of member states on rules governing safety, the process of certifying railway undertakings, the roles and work of national safety authorities and the procedure for the investigation of accidents. The SIs also amend Northern Ireland regulations to correct deficiencies in the domestic Northern Ireland legislative framework.

According to the Explanatory Memorandum, the current railway safety directive is due to be repealed very shortly indeed—I think it is next month. No, I am sorry; the railway safety directive is due to be repealed in just over a year’s time. It is the new recast safety directive that is required to be transposed into the domestic law of EU member states next month, but with scope for this date to be extended for a year. Consequently, this recast rail safety directive has not been transposed into UK law. Bearing in mind that we have not yet hit intended dates for leaving the EU, will the Minister clarify that the date for transposing the new directive into our domestic law has been extended for a year until June 2020? If that is the case, can she also say by how far in advance of June 2020 we would have had, in reality, to start the process for transposing the new safety directive into our domestic law to meet the June 2020 deadline?

The EU also has a recent regulation on aspects of railway safety and connectivity in the light of our intended withdrawal from the EU, to provide for a temporary extension for nine months if we leave without a withdrawal agreement, and to enable the continuation of cross-border services between the UK and the relevant EU member states, namely France and the Republic of Ireland. When does that nine-month temporary extension start? Is it from the date we leave the EU without a withdrawal agreement, if that is what eventually happens, or another date?

Paragraph 2.10 of the main Explanatory Memorandum states that:

“The amended 2006 Regulations will preserve the status quo”.


The Minister has already confirmed that that is the case, but can the Government say what preserving the status quo actually means? At present, the regulatory framework of EU member states is harmonised. Does preserving the status quo mean that will continue after our withdrawal, to the extent of adopting subsequent amendments and changes to the regulatory framework made by the EU? If not, in what circumstances do we see ourselves not adopting changes and amendments made by the EU? Alternatively, in what circumstances do we see ourselves making changes and amendments of our own that do not apply to EU member states?

Paragraph 2.10 of the Explanatory Memorandum refers to the removal of the requirement on the UK to share information with the European Commission or agency, then refers to an EU regulation to which I have already referred, which imposes,

“requirements on the holders of safety certificates and authorisations to share certain information to continue to benefit from the temporary extension of validity”.

The Explanatory Memorandum then says that:

“The UK Government fully expects all holders of applicable documentation to do so”.


Does that statement apply to continuing to share information generally with the EU, as is required at the moment, or only to the regulation providing for a temporary extension of validity?

Paragraph 2.12 of the main Explanatory Memorandum refers to a subsequent piece of legislation providing for the time-limited recognition referred to in paragraph 2.11, and says it will be brought forward “in due course”, which is as long as the proverbial piece of string. When in fact is that piece of legislation or instrument expected to appear?

Paragraph 10.4 of the Explanatory Memorandum refers to the over 300 industry bodies that were invited to participate in the informal consultation. It does not specifically mention the trade unions, so I ask the Minister if the trade unions were included in the informal consultation.

I mentioned earlier that we did not hit intended EU withdrawal dates. The Secondary Legislation Scrutiny Committee recommended that these regulations be subject to the affirmative procedure, because of the potential impact of the proposed changes on cross-border rail operations, including on Northern Ireland, for which one set of regulations specifically maintains the train operator and train driver licensing regime in Northern Ireland. Could the Minister say more specifically than is set out in the relevant Explanatory Memorandum why it is necessary, under these SIs, to allow for the indefinite recognition of these licences in Northern Ireland, whereas in Great Britain the intention is to recognise them for just two years after exit day or until they expire, whichever is the sooner? We have not had a full explanation of the necessity for that difference.

The Department for Transport accepted the sub-committee’s recommendation that these regulations be subject to the affirmative procedure, but the department has laid these instruments under the urgent “made affirmative” procedure designed to ensure that the regulations come into force by exit day which, at the time these instruments were made, was 12 April. It has also been necessary for the instruments to come into force less than 21 days after being made, which is contrary to the usual practice. On the face of it, it does not look as though the department has dealt with these SIs and their scheduling with the same attention to detail and timescales that it would expect the railway industry to deliver on the safety issues to which these SIs relate. Consequently, as I understand it, these instruments are already in force, although to remain in force they have to be approved by Parliament within 28 days—presumably 28 sitting days, otherwise we are already out of time—beginning with the day on which the instrument was made.

It is clearly preferable if the “made affirmative” procedure is not used, since it negates the purpose of the affirmative procedure, which is that instruments should have parliamentary approval before they come into force. So as a final question—on the same lines as that of the noble Baroness, Lady Randerson—will the Minister explain why it was not possible to bring forward these instruments in time to enable the normal affirmative procedure to be applied, including in a situation where they were laid as proposed negative instruments but where the Secondary Legislation Committee recommended that they be subject to the affirmative resolution procedure? I do not think that we have had a proper explanation of why the instruments were not brought forward in time to go through the full, proper affirmative procedure process.

[Baroness Vere of Norbiton]

I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, for their comments and for agreeing to meet me before discussing the regulations today. That was extremely helpful. Some of the issues I knew would come up; others, not so much. If I do not respond to all of them, I shall of course write.

I share the regret of the noble Baroness, Lady Randerson, that there is no functioning Northern Ireland Executive; I think that we all hope that one will be in place as soon as possible. A theme raised by both the noble Baroness and the noble Lord was the timing of the SIs and why noble Lords are here today to discuss them under the “made affirmative”, or urgent, procedure.

As has been pointed out by a number of people, these SIs are quite complex, particularly in terms of the legislation relating to Northern Ireland. It took a while to make sure that they were right. The noble Baroness said that Northern Ireland deserves better; I would say that actually it deserves the best. We wanted to make sure that the complexities surrounding these issues were absolutely nailed down before we laid the regulations. Timing was slightly against us—but, then again, the regulations were laid as negative; we did not expect them to be upgraded to affirmative. When they were upgraded and we looked at the parliamentary timetable, we realised that there might not have been time from that point until 29 March—there could have been time, but, as noble Lords will know, a number of committees need to consider these things—and decided that the best way forward was to lay the instruments as “made affirmative”. The noble Baroness was right to say that it is unusual, but it is not unique—I am sure that many noble Lords were here for the two debates preceding this one; they, too, were for “made affirmative” SIs. There were a number of SIs which, as we approached exit day, it was necessary to consider within the “made affirmative” procedure.

The noble Lord, Lord Rosser, asked me about 28 days—it is indeed 28 sitting days.

[Lord Rosser]

The Minister says quite rightly that the regulations are complex, but this is not the first set of complex regulations that has appeared from a department. Neither surely is it the first time that a department has suggested that it should be dealt with by the negative procedure and the committee has said that it should be the affirmative, and the department has agreed and it has still been done in time to put it through the proper affirmative procedure. So I ask again: why could this not be done by the Department for Transport? There is nothing unique about their being complex; there is nothing unique about a department saying that they should be negative, the committee saying that they should be affirmative and there still being time to do it through the proper affirmative procedure.

[Baroness Vere of Norbiton]

I completely accept what the noble Lord says. In certain parts of the organisations that had to deal with these things, the pressure on resources was quite significant. I am not prepared to say much more on that.

Safety and data sharing were also rightly raised by noble Lords. As the noble Baroness, Lady Randerson, pointed out, they are critical. The Government have no intention of compromising the safety of our rail network—or, indeed, anyone else’s. The Office of Rail and Road will be sharing data and we already have a very good relationship with it. I should like to go into a tiny bit more detail about this, because it is important. EU member states already have a number of cross-border rail arrangements with third countries covering a wide variety of arrangements, including border arrangements, sharing information about cases of accidents, the responsibilities of train operators—all sorts of things. For example, there is one between Croatia and Bosnia-Herzegovina and one between Poland and Russia, and both have negotiated bilateral agreements on cross-border rail arrangements. We anticipate that, as our relationship with the EU develops, we too will have these sorts of relationships. In the short term, the Office of Rail and Road will work very closely with its counterparts, as it already does, to enable it to continue to share information with EU and EEA member states. In particular, it is extremely important that we work closely with our immediate cross-border neighbours, France and the Republic of Ireland. Our engagement is going very well and we aim to sign a memorandum of understanding with both countries to enshrine co-operation agreements so that they can continue.

The noble Baroness asked what would happen if the ORR revoked a safety certificate belonging to an operator established in the EU and the UK: would the UK have a legal obligation to inform the EU? If the ORR issued a part B certificate based on an EU part A safety certificate, the ORR would be required to inform the EU safety authority that issued part A if it went ahead and revoked part B. She mentioned safety certificates that run out earlier. I believe that there is only one—most will be able to go up to the two-year sunset clause, and that organisation will be able to apply to the ORR for a new safety certificate.

Turning to the question of nine months, we have a new agreement with the EU, which has said that for nine months regulations will stay where they are. This obviously relates particularly to the Republic of Ireland and France, those being the countries we send most of our rail to, and I believe that nine months is a first step: there will obviously be more discussions to be had. The nine-month clock will start on the day we leave the EU. The noble Baroness raised an interesting point about operators going beyond France, for example. Operators are making their own arrangements to operate services beyond, and they have in place EU- issued operator licences, so I believe that people have already thought about that and are taking the appropriate steps.

The issue regarding Northern Ireland is interesting and important. It is a transferred matter and, in the absence of a functioning Northern Ireland Executive, it is right and proper that we preserve the status quo as much as we can. We therefore took the decision, given the connectedness of the network in Northern Ireland and the implications of that, that a different time limit was appropriate. Indefinite recognition of the various certificates in Northern Ireland is essentially the status quo. In the future, as it is a transferred matter, if there is a functioning Northern Ireland Executive that Executive will be able to make their own decisions. For the time being, however, it was agreed that this is the best way forward for Northern Ireland. Conversely, within Great Britain a decision has been made to match the sunset clause for these items to the sunset clause already in place for other types of rail licence.

The noble Baroness mentioned the consultation. We have carried out a fair amount of consultation. We wrote to 300 industry representatives and, as the noble Baroness mentioned, we had eight responses. I have not seen them but I will certainly write if they raised any particular issues. Workshops were also held and a technical notice came out on 12 October. The noble Lord, Lord Rosser, asked whether the unions were involved in the consultations. I believe that ASLEF was invited to the workshop but was unable to attend.

The noble Lord, Lord Rosser, mentioned the next railway package—the fourth railway package, otherwise known as the recast safety directive. There are two issues here: first, what happens if we have a deal; and secondly, what happens if we do not have a deal. During any implementation period that comes into force under the withdrawal agreement, the UK would be required to meet its EU obligations. This would include the transposition of the fourth railway package. We would obviously proceed with that in the implementation period to have it done by June 2020. If the withdrawal agreement is not ratified and the UK leaves without a deal, we will need to decide whether we will transpose the technical pillar of the fourth railway package. The decision will be made on what account to take up the fourth package as regards, for example—this is the important bit—cross-border services with the French. We will need to look at where we are and what needs to be implemented to make sure that those cross-border services can continue. There will obviously be sufficient time on both of these for scrutiny by your Lordships to ensure that these matters are conducted accordingly.

Work has already commenced on the rail safety directive. We have started the underlying work to transpose the recast safety directive as part of our existing obligations as an EU member state. As I mentioned, we expect to implement by June 2020 and have already notified the EU Commission that we will be doing this.

Will this be for ever? Status quo does not mean matching the EU. The issue is that we may—or we may not; it is not certain—want to take our safety regime in a different direction. That does not mean that our safety will be any less important to us, or that the safety of our passengers will be compromised in any way. However, it might mean that, if we diverge in the future from EU law because doing so might present opportunities for the UK to shape our railways in the way we want, the safety outcomes will be the same but our law might say something different. I am not saying that this will definitely happen; I am not saying that this is even remotely likely in the short term. But status quo certainly does not mean being in lockstep with the EU on the rail safety legislative framework in perpetuity.

I am sure there are a few questions I have missed. I will look at Hansard and make sure that I have all the responses to any remaining questions from both the noble Baroness and the noble Lord.