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House of Lords Hansard
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Rail Safety (Amendment etc.) (EU Exit) Regulations 2019
13 May 2019
Volume 797

Motion to Approve

Moved by

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That the Regulations laid before the House on 9 April be approved.

Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“risk to society as a whole”,

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

The committee also considered that the words,

“risk to society as a whole”,

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

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

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

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

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

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

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

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

Turning to Northern Ireland, cross-border services are particularly important there, being extremely frequent and regular. Part A safety certificates issued in the Republic will continue to be recognised in Northern Ireland. This is a very pleasing piece of common sense, although I wonder what the DUP Members will think of it, since they have a basic principle that Northern Ireland should not be treated any differently to the rest of the UK. In this piece of legislation we are adopting a different principle. Northern Ireland being given a different solution to the rest of the UK was a particular issue for the Secondary Legislation Scrutiny Committee’s sub-committee.

The third of these SIs deals with train drivers’ licences, which are much more numerous than the safety certificates issued to train companies—there will only be a handful of those, but there will be hundreds of train drivers’ licences. Once again, we have a duty to share information replaced with a power to share information. I am very concerned that in practice this will lead to mistakes or omissions. It is easy to imagine a case where a train driver not having the appropriate licence is overlooked and not appropriately reported, since we are dealing with a power to share rather than an obligation to share. It could be the case that, because the legislation says that someone does not have to share that information, there is nothing anyone can do about it. I have serious concerns that this could undermine safety, so my question to the Minister in relation to the regime for licencing and certifying train drivers in Northern Ireland is whether, in respect of the principle that there will be continued recognition of licences issued in other EEA states, this will be a permanent situation or is it envisaged to be time-limited. It may not specify that it is time-limited in the SI, but it might be that the Government intend to change that system in due course. I would be grateful if the Minister could clarify that.

As usual, consultation has been minimal. The first of these SIs, which the Minister referred to as the GB rail safety instrument, includes provisions that in practice are applicable only to Great Britain, but it includes other provisions that are applicable to the UK and some that are applicable to Northern Ireland, so it is actually a very long and complex SI. Paragraph 10.4 of the Explanatory Memorandum for that SI says:

“Over 300 industry bodies were invited to participate in the … consultation”,

and that only eight responses were received. Can the Minister say whether those responses were all positive and supportive?

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.

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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 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.

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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 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.

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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.

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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 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 its 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 at all. 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.

Motion agreed.