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.