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Grand Committee

Volume 800: debated on Wednesday 30 October 2019

Grand Committee

Wednesday 30 October 2019

Arrangement of Business


Welfare of Animals at the Time of Killing (England and Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Welfare of Animals at the Time of Killing (England and Northern Ireland) (Amendment) (EU Exit) Regulations 2019.

Relevant document: 2nd Report from the Secondary Legislation Scrutiny Committee

My Lords, this statutory instrument makes simple and technical amendments to domestic legislation so that we meet our obligations under the UK-Ireland common travel area with regard to certificates of competence for slaughterers upon exit. After exit day, a slaughterer will have to have a UK certificate of competence in order to work in the UK. This means that slaughterers operating in the UK after we leave the EU must hold a certificate of competence issued by a UK competent authority. This will ensure that any changes we want to make to the regime in the future will apply equally to all slaughterers operating in the UK. It will also enable us to take effective enforcement action in the UK, as currently only the member state that issued a certificate of competence can suspend or revoke it.

It is, however, the case that we continue to have reciprocal arrangements with the Republic of Ireland under the UK-Ireland common travel area, which provides a right for Irish citizens to work in the UK and have qualifications recognised, and vice versa. This instrument ensures that we will continue to recognise training and examinations carried out in the Republic of Ireland after we leave. It does this by amending the definition of “evidence of training and examination” contained in Regulation 3(1) of the Welfare of Animals at the Time of Killing (Northern Ireland) Regulations 2014 and the Welfare of Animals at the Time of Killing (England) Regulations 2015. This means that, when applying for a certificate of competence from the competent authority in England and Northern Ireland, the applicant may refer to any training and examination undertaken in the Republic of Ireland to support their application. The applicant will not need to undergo further training or take an exam if they have already passed the relevant modules in the Republic of Ireland.

The Food Standards Agency and the Department of Agriculture, Environment and Rural Affairs—DAERA–which are the competent authorities in England and Northern Ireland respectively, consider that very few applications are likely to rely on evidence of training or examination from the Republic of Ireland: the estimate is two applications per year, and any impact would be positive insofar as the applicant would not be required to undergo additional training or examination and would not incur the additional costs, which would be approximately £225.

Animal welfare is a devolved issue. Each devolved Administration is responsible for their own regulations in this area, but, as noble Lords are probably aware, the Scottish and Welsh Governments have made similar amendments to ensure consistency across the UK. We have decided that, in the interests of legal certainty in Northern Ireland, the UK Government may take through the necessary secondary legislation for Northern Ireland in some circumstances.

I will answer the noble Lord in just a second.

In the interests of legal certainty in Northern Ireland, the UK Government may take through the necessary secondary legislation for Northern Ireland in some circumstances, in close consultation with the Northern Ireland departments. This is one such instrument.

The answer to the noble Lord’s question is that the common travel area has been in force since 1922—so quite a long time.

The Government have taken care to avoid using the urgency procedure, but they considered the use of this procedure to be appropriate in this instance to ensure the continued application of our obligations under the common travel area at the point of exit. I beg to move.

My Lords, while it was unfortunate that the original SI was not drafted to recognise certificates of competence issued in the Republic of Ireland, it is surely right that this is put right now. The consequence of a large number of people currently working in our abattoirs suddenly being unable to continue to do so legally, upon our departure from the EU, could clearly be adverse for the welfare of animals immediately before slaughter.

I am delighted that the Prime Minister has identified animal welfare standards as one of the areas that we can improve on after leaving the EU. I ask my noble friend the Minister to pass on to him that the All-Party Group for Animal Welfare has recently undertaken an inquiry into small abattoir provision, specifically arising from concerns at the alarming rate of closure of small abattoirs over the last few years. There is a strong view that welfare standards are good across the production landscape, but small abattoirs are able to limit transport distances and times, ensure swift processing and avoid mixing unfamiliar animals and collecting points during lairage—all of which would suggest that they can improve welfare outcomes.

I understand that the Government are looking at wider improvements to animal welfare, and that one of the objectives is to reduce travel time from point of production to slaughter. The recent objective announced by the Government that farm animals should be sent to the closest available abattoir, alongside the intention to address live transport, could mean that, ultimately, we would need more small abattoirs.

A thriving rural economy which ensures that local farming is profitable will also help to ensure good animal welfare. Anecdotal evidence would imply that livestock passing through small-scale abattoirs is more likely to be destined for local markets. Given an increased demand and commitment by many consumers to purchase from a high-welfare husbandry system, shorter and therefore more easily transparent food supply chains are, I would argue, desirable.

Small-scale farmers selling premium, high-welfare products can often increase profitability by being both producer and retailer of their products. This demands small-scale and sometimes specialist slaughter facilities to accommodate more varied breeds and seasonal supply. Private kill is often fundamental to the business model, and this is rarely offered at large-scale abattoirs.

Specific examples of premium products requiring specialist slaughter facilities are rare and native breed animals. Polled cattle breeds, for example, are often catered for only by small abattoirs because of the need to adapt the facilities to suit their specific requirements. Outdoor-reared pigs, which tend to have a thicker coat than indoor-reared animals, are unsuitable for some larger-scale abattoirs. At this stage, I simply ask my noble friend the Minister to take this back to her department.

My Lords, one lesson I learned in 1974, when there was no induction system, came from the late Willie Hamilton MP, who noble Lords will remember. He used to do his own little bit for Members, and one thing he always told us was, “Never ask a question unless you know the answer, because you might be surprised”.

The common travel area has been in place for almost 100 years. The Government, in their headlong rush to Brexit, forget that it includes work, and work includes professional qualifications and mutual recognition. That has always been the case. It has nothing to do with the EU. It is part of the system we have of living in the British Isles.

It beggars belief. I remember this being raised in Committee B—I think it was—when we were split for the statutory instruments. The question arises: what else is affected? If the Government forget about slaughtermen and slaughterwomen in the killing of animals, what other jobs have been affected across Ireland and the UK, where we plan—because we have not left yet—to charge, or to abandon mutual recognition?

This is not something that nobody thought about. As the second report of the scrutiny committee makes clear, the earlier instrument ended the recognition of the certificates of competence. So it was a positive act of the Government to end mutual recognition. It has not just slipped through; they forgot that it included work. This beggars belief. I am certainly not blaming the civil servants in Defra; some of the finest civil servants I have worked with were in Defra—Dame Glenys Stacey, Jill Rutter and of course all my private office staff, who are busy climbing their way up at the present time.

However, the fact is that in Paterson, Leadsom, Truss and Villiers we have had four absolute duds as Secretaries of State. I do not expect the Minister to respond to that, but it is a fact. They are all hard-line Brexiteers not looking at or even thinking about any detail. It almost beggars belief that this would not have been put in a brief at some point if they were attending to matters of mutual respect with the island of Ireland in the normal day-to-day work of Defra—the department that, above all others in Whitehall, probably still has, for obvious reasons, the most day-to-day contact with the EU.

Has any other work been done on this? Why is it only this narrow bit? I assume that, if it was remembered in other departments, someone would quite clearly have said something to Defra two years ago, because obviously this has taken quite a while, even after it was alerted. And there is an attempt in the instrument itself—I really find this very sad—almost to blame the non-sitting of Stormont. It has nothing to do with the non-sitting of Stormont. I consider it outrageous to effectively blame the local politicians who should be getting together but are not. This is something central government forgot about in Brexit—and we are going to end up charging people over £200. All right, it is not many people, but numbers do not count here; it is the principle of the issue. What other professions and departments have been dealing with work under the common travel area? I assume there ought to be an answer to that.

I certainly do not hold the present Minister responsible for any of this whatever—I meant to say that earlier. No, it is the dud top dogs in Defra who are to blame for this.

My Lords, I will bring up something different. There is a lot of ritual slaughter in this country, and I have no idea whether those who perform it are in any way regulated. Those who know anything about slaughter for halal meat will know that it is not the way animals should be treated—a prayer has to be said while the neck is being separated from the body. It is just going on, and we do nothing about it.

The other thing is that some halal meat—the majority, some say—is, I cannot remember the word—

I thank the noble Lord. I said to the last Secretary of State that meat that is available as halal or pre-stunned should be labelled. He said that that might reflect badly on Muslims. But they too want it to be labelled because the very conservative Muslims will not eat pre-stunned halal. They will eat only halal meat where the neck was cut off while prayers were being said. It is time we looked at that, as it certainly goes against animal welfare.

Really, everything should be labelled. We have always labelled everything in this country; why do we not label halal? Everyone says that all the takeaways now serve halal because they want Muslims to buy it. That is fine, but we should know. Everybody should know what they are eating. People like me who will not buy halal because of the ritual slaughter should also know whether we are eating halal. I would very much like the Minister to look at this issue, which has just been brushed under the carpet: “Oh, we do not want to upset the Muslims”. Why not? They are living in this country; they should conform to our standards.

My Lords, I support the point made by the noble Baroness about stunning animals before slaughter, but perhaps I may ask my noble friend a different question. I understand that the vast majority of vets at slaughterhouses are from the EU. Is she confident that we will have enough vets to protect animal welfare to the highest standards once we leave the EU?

My Lords, I thank the Minister for her introduction and for her time in producing a briefing. This SI is a tidying-up exercise and, as the noble Lord, Lord Rooker, said, many aspects have been missed out in previous SIs. This SI covers the certificate of competence which those working in slaughterhouses will need in order to continue to be employed. The certificate is awarded after training has been completed. However, due to existing regulations, those working in Northern Ireland will not need any additional training, but they will need to register as an EU slaughterer. The FSA issues the certificates to work.

Defra expects around two applications per year to be affected by the changes, saving each applicant approximately £225 for additional training or examination which would otherwise be required. The department says that both Scotland and Wales are making similar changes to ensure consistency across the UK.

UK workers can work in Northern Ireland and in the Republic of Ireland, so the movement of animals across the border will not be affected—not that this SI deals with the movement of animals. It is only about what occurs within the confines of the abattoir and about the welfare of the animal at the point of killing, as other noble Lords referenced. This is a very important point.

As the Minister said at the briefing, most of those who receive training at an abattoir tend to remain and work in that location for some considerable time and do not move around. I shall be very interested in the answer she gives to the noble Earl, Lord Caithness, about whether we have enough qualified people working in abattoirs to meet our needs.

This instrument is needed to ensure that the UK meets its obligations under the UK-Ireland common travel area, which provides for the right of Irish citizens to work in the UK and have professional qualifications recognised. For me—but probably not for others—it is non-controversial, and I am happy to support it.

My Lords, I am grateful to the Minister for introducing this SI and for the helpful briefing that she organised beforehand. We have debated the more detailed SI—which this SI now seeks to amend—on a previous occasion, and I do not intend to repeat the original issues we raised at that time.

To echo my noble friend Lord Rooker, it does raise the question of why the obligations under the UK-Ireland common travel area were not picked up and incorporated at that time. I agree with my noble friend that, to use his words, it “beggars belief” that this was not picked up beforehand. I also agree that it is possible that other professions covered by other SIs might similarly have been missed out, given that we are dealing here with a pretty fundamental agreement.

When we originally discussed this issue in March, the Government estimated that around 200 EU nationals working here as slaughterers would have to apply for a new UK certificate of competence, at the cost of £225. Have these figures been updated and is there an increased danger of UK slaughterhouses not having sufficient staff to deal with the throughput of animals? I agree with the noble Lord, Lord De Mauley, that there is a particular concern about the future of smaller abattoirs—only one part of which is the issue of staffing. Nevertheless, I should be interested to have confirmation from the Minister that the Government are alive to this issue and that it is being addressed. I also agree with the noble Baroness, Lady Flather, that halal meal should be properly labelled. She has raised important issues there.

I want to ask about a separate relatively small point. In the letter to the Secondary Legislation Scrutiny Committee, the Government said that there were only about two applications a year from the Republic; the noble Baroness repeated that figure today. How was that figure calculated? It seems particularly low, given that we are led to believe there is a relatively free flow of work across the border, for example. How was the figure estimated and might it change in the future?

Finally, I will address the issue of devolved interests. Paragraph 7.6 of the Explanatory Memorandum says:

“Animal welfare is a devolved matter”—

which we know, while the Secondary Legislation Scrutiny Committee’s report said that Scotland and Wales were making similar changes to those proposed here to ensure consistency. Again, the Minister repeated that, so why does it say in the Explanatory Memorandum, at paragraph 4.1:

“The territorial extent of this instrument is England, Wales and Northern Ireland”,

whereas at paragraph 4.2 it says:

“The territorial application … is England and Northern Ireland”,

only? Can I have clarification of the status of Wales in how this SI will be applied? I look forward to the Minister’s response.

I thank all noble Lords who have taken part in this short and interesting debate. They have brought up many interesting issues that are not part of this SI, but I will still try to answer some of them.

I could not agree more with my noble friend Lord De Mauley: our welfare standards are very important. I think he said that he was involved in an APPG on small abattoirs. That is fascinating and a very important part of this. As we know, in England small abattoirs are so important to local farmers, as they do not have to travel a long way with their animals. It also means that they know the slaughterers in the abattoirs. In fact, when I take my sheep to our local abattoir, I am absolutely thrilled that I know everybody working there. I have known them for a long time and am absolutely sure that the welfare of the animals is tip-tip-top. I will certainly take that back to the department.

My noble friend also mentioned the travel of live animals, which again is a concern, as we know. I cannot say too much about that at the moment because we are in consultation on it, but we certainly feel that the live export of animals for fattening and slaughter needs to be looked into. We believe that it is possible to send animals on long journeys while simultaneously respecting the need for good animal husbandry. Sometimes they may travel for 30 or 40 hours, as we know, and in some cases 50 hours, which is not compatible with animal welfare. So it is certainly being looked into at the moment. In fact, when this SI was considered at the other end, my right honourable friend the Minister, Zac Goldsmith, mentioned that he was very involved in several round tables going on at the moment. He is talking to stakeholders and finding out the standards that might be changed as far as that is concerned.

I always love it when the noble Lord, Lord Rooker, stands up to talk, because when I first came here I was a Defra whip and he was enormously helpful to me. Quite often, I had to stand up and answer questions that I had no idea about, so I used to go to him and he would tell me what I should say and give me the answers. But I do not have him to ask today, because he is asking me the questions; we are slightly changed around.

The noble Lord asked about the common travel area and I hear what he says about it. In fact, the common travel area predates our joint accession to the EU. It offers Irish citizens the right to live and work in the UK and vice versa. The recognition of qualifications is necessary to enable individuals to exercise their right to work. Both Governments have publicly committed to protecting the rights associated with the common travel area. In May 2019, the UK and Irish Governments signed a memorandum of understanding reaffirming their commitment to it, as well as acknowledging that the recognition of professional qualifications was an essential facilitator of the right to work.

The noble Lord also mentioned other people wanting to work in the common travel area and asked how that would be affected. That is a BEIS competence. There is a comprehensive process going on at the moment and Defra is engaging with it.

My noble friend Lord Caithness and the noble Baroness, Lady Bakewell, asked about vet standards. The Home Office decision to place the veterinary profession on its shortage occupation list means that it will be easier for UK employers to attract international veterinary expertise. It will also help to ensure that the UK can continue to maintain high standards of animal health and welfare, veterinary public health advice and biosecurity. We have already made operability amendments to the Veterinary Surgeons Act 1966 to ensure that the mechanisms are in place to recognise equivalent certificates from anywhere in the world.

The noble Baroness, Lady Flather, talked about halal and kosher labelling. The Government will not accept labelling changes that could put up the cost of food for religious communities. We expect industry to provide consumers with the information to enable them to make informed choices about the food they eat. The Government are aware that there is public concern about meat from animals being slaughtered in accordance with religious beliefs being sold to consumers who do not require their meat to be prepared in that way. My right honourable friend the Minister, Zac Goldsmith, was asked a similar question when this SI went through in the House of Commons. He said:

“The previous Secretary of State initiated a series of roundtables with stakeholders from across the board. Those discussions continue and I am now involved in them. I have had some very good meetings with stakeholders in the last month. It is not the right time to pre-empt what we will deliver as a consequence of that, but we will deliver steps that I think will satisfy the stakeholders’ concerns and improve animal welfare at the point of slaughter”.—[Official Report, Commons Eighth Delegated Legislation Committee, 29/10/19; col. 6.]

Will we be able to know what we are eating? I want to know what I am eating. We have always had that in this country. We always tell people what they are eating. There are many countries where horses are normally eaten, but here there was a big hoo-hah about it. Why should it bother the people for whom the ritual slaughter is done? They should be happy that they know what they are eating.

The Government are aware that there is public concern about that. I think that that is part of the round table discussions going on at the moment with my right honourable friend.

Are some of the round table discussions about the fact that all New Zealand lamb imported into the UK is halal, and it is all pre-stunned? Is it a fact that the meat used in the National Health Service is all halal and patients are never told and that the meat in prisons is all halal and prisoners are never told? Should they not be?

I hear what the noble Baroness and the noble Lord say, and I will certainly take it back to the department. As I said earlier, it is being looked into.

The noble Baroness, Lady Jones, mentioned staff in abattoirs. It is important to remember that a lot of staff come over from eastern Europe or wherever it happens to be to learn the trade in abattoirs in England, and they get their certificate of competence in England, which means that they are trained to English standards. It means that the standards are as good there but, if they come from abroad and they do not have the certificate of competency, obviously they have to get it and undergo training before they are allowed to work in an abattoir.

The noble Baroness also referred to the two applications a year. The reason for that was that they had to come up with a number. It is not likely to be as many as two; it could be none. They felt that that was the mean average; there is no particular meaning to that number otherwise.

The issue of jurisdiction between England and Wales was a legal matter. Normally, when we deal with SIs, the SI refers to England and Wales working together. In this case, Wales is doing its own, so it refers only to England. That is why that was in there.

I think that I have answered everybody’s questions, so unless anybody wants to ask anything else, I thank all noble Lords for taking part.

There is still the question of whether there is anything to look at the people who practise these ritual killings. Do we know anything about them, such as whether they are in any way competent?

All abattoirs are registered. There certainly are some illegal ones, but they should not be allowed to practise.

I hope that your Lordships are reassured on these points. I reiterate that the regulations do no more than meet our existing obligations under the common travel area.

Motion agreed.

Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) (No. 2) Regulations 2019.

My Lords, the instrument amends existing domestic legislation to ensure operability following EU exit. The SI relates only to Northern Ireland, concerning devolved areas of policy ranging from animal and plant health, non-native invasive alien species and the wider ecosystem, which would normally be dealt with by a devolved Administration. The regulation relates to protecting biosecurity. The changes do not introduce any new policy but seek to ensure that legislation is fully operable after exit.

The SI will make minor amendments to existing Northern Ireland domestic legislation, namely the Eggs and Chicks Regulations (Northern Ireland) 2010. These regulations make provision for the enforcement and execution of EU marketing standards relating to eggs for hatching and farmyard poultry chicks and eggs in shell for consumption. They also make provision for the enforcement of controls for salmonella serotypes with public health significance in relation to the marketing and use of eggs in shell for human consumption. They confer powers of entry and seizure and other enforcement powers, including the power to destroy seized products.

This SI amends the eggs and chicks regulations to ensure operability following exit by omitting EU requirements, namely offences of not marking eggs, or not marking eggs correctly for delivery between member states. The instrument also removes a reference to Article 4 of Council directive 1999/74/EC, replacing it with a reference to the Welfare of Farmed Animals Regulations (Northern Ireland) 2012. The instrument prohibits the importation of animal pathogens or carriers of such pathogens except under a licence issued by DAERA. This SI makes minor, technical amendments to this instrument in relation to a reference to, and a definition of, “another Member State”.

On the Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) Regulations 2019, the original SI made necessary amendments to subordinate legislation in relation to animals, aquaculture, environmental protection, food and horticulture. This SI amends that regulation to insert a corrected reference to the community marketing rules offences in the Marketing of Fresh Horticulture Produce Regulations (Northern Ireland) 2010. The amendments in this SI provide transitional arrangements for fresh horticultural products placed on the market after exit. This will ensure that fruit and vegetable marketing labels currently allowed under EU law will continue to be permitted in the UK during a transition period of 21 months after exit day. The EU labelling requirements set out in Article 7 of Commission Implementing Regulation 543/2011 should have referred to regulation 15 rather than regulation 17 and is amended by this instrument.

The Marketing of Vegetable Plant Material Regulations (Northern Ireland) 1995 implement Council directive 92/33/EEC and Commission directives 93/61/EEC and 93/62/EEC on the marketing of vegetable propagating material other than seeds within the European Union. This instrument amends these regulations by making an operability amendment with the substitution of “European Union” with “United Kingdom”.

The Plant Health (Wood and Bark) Order (Northern Ireland) 2006 makes provision for measures to prevent the introduction and spread of harmful forestry pests and diseases. This instrument amends this order by removing references to the European Union, omitting EU decision references that are not operable outside the EU, and omitting references to EU decisions.

The Plant Health Order (Northern Ireland) 2018 makes provision for transposing the EU directives that protect plant health. This relates in particular to the official control of quarantine organisms affecting plants and plant products. In addition, it relates to official investigations and surveys, official designations of infected areas and demarcation zones for control, and measures to be taken following confirmation of outbreaks. This instrument amends the Plant Health Order (Northern Ireland) 2018 to omit definitions of decision (EU) 2018/1503 relating to the organism Aromia bungii—also known as Faldermann. This EU decision was added to the order after the Agriculture, Environment and Rural Affairs (Amendment) (Northern Ireland) (EU Exit) Regulations 2019 SI was made, and is now included in the UK common list: therefore, this is not required in the order after EU exit.

The Invasive Alien Species (Enforcement and Permitting) Order (Northern Ireland) 2019 introduced penalties and sanctions to implement the requirements of Regulation (EU) 1143/2014 of the European Parliament and of the Council on the prevention and management of the introduction and spread of invasive alien species. Regulation (EU) 1143/2014 will become retained EU law on exit day. On that day, the list of invasive alien species known as “species of Union concern” will become,

“the list of species of special concern”,

reflecting the UK’s exit from the European Union.

This SI amends that order to ensure parity with retained EU law, omitting the definition of “Union list” throughout the order and, where appropriate, replacing the term with “list of species of special concern”. The list of special concern is defined in the amendment to reflect that the list is derived from the EU’s list of invasive alien species. Similar amendments have been made for the UK statutory instrument, the Invasive Alien Species (Enforcement and Permitting) Order 2019.

This instrument is needed to ensure that operable legislation is in place in Northern Ireland for exit day and to facilitate the flow of goods while preserving the current plant and animal health regime’s overall aim of preventing and managing pest and disease threats. It is basically a wash-up SI and I beg to move.

My Lords, here is yet another SI to tidy up things for Northern Ireland. Most of the items covered have previously been debated at length, some only last week. As the Minister just said, the SI appears to be a sweep-up of things overlooked or already in need of amendment. I have little to add to previous debates.

I understand that, in terms of eggs and chicks, the instrument changes the law from EU standards to Northern Ireland standards and will help to prevent the spread of salmonella. A limit of nine laying hens per square metre is included in the SI.

It is reassuring that a licence is required before animal pathogens are imported, with exceptions for veterinary and human medicines. I am reassured that these exceptions will continue post Brexit to ensure both animals and humans will have access to the medicines they need; that will be important.

We have had a great many debates about invasive alien species, which are numerous. Lists of the species are held in the EU and will transfer from EU to UK law, including Northern Ireland law, on Brexit. Although this is important, we all know that it is tremendously difficult to limit invasive species, which, as their name suggests, are hardy and difficult to eradicate.

Noble Lords will be pleased to hear that I will not go through the whole list of subjects covered by the SI. Despite the many items it covers, I am at something of a loss to understand why this SI in particular should be subject to the urgent “made affirmative” procedure. Perhaps the Minister will comment on that.

My Lords, I am grateful to the Minister for explaining the SI and for the helpful briefing that she organised beforehand.

This is one of a number of recent Defra SIs laid using the “made affirmative” procedure, with the justification that changes to the statute book must be implemented by the EU exit date of 31 October. It is now 30 October and it is clear to everyone concerned that we will not leave on 31 October. Nevertheless, we seem still to be correcting errors, some of which might be said to be quite serious. For example, Regulation 4 corrects an error made in a previous Defra SI and was identified in the 69th report of the Joint Committee on Statutory Instruments as sufficiently important not to,

“be suitable for correction by correction slip”.

Regulation 8 amends the Marketing of Seeds and Plant Propagating Material (Amendment) (Northern Ireland) (EU Exit) Regulations to correct a reference to the European Union that was missed in the original instrument.

A number of these amendments change longer standing, devolved Northern Ireland legislation, which one would hope had been cross-checked and updated well before now. If the Minister accepts that we will not leave tomorrow, as is clear, where does this leave the “made affirmative” provisions, which, as the noble Baroness, Lady Bakewell, said, were only ever intended for use as an emergency measure? I query whether the Government are now broadening them out to deal with all the corrections and updates that really should have been made some time ago. I find this process unsatisfactory. I hope that the Minister can comment on that.

Can she clarify what additional steps have been taken to ensure that these new instruments, and the ones we have been dealing with during the past year, are 100% correct? We seem to be uncovering new mistakes every week. Will the Government use this delay to the exit to hold a thorough review of the state of Defra EU exit legislation so that we are not left making endless corrections? They could cause considerable confusion to businesses and farmers who will be doing their best to abide by our laws in the coming period.

On a separate matter, what organisations in Northern Ireland have been consulted on these proposals? Are they content with them as they stand, even though it appears that we may well be revisiting them in the context of the re-establishment of the Northern Ireland Assembly or of a variation of the withdrawal Bill when we come back after the election? A comment on the stakeholders who have been consulted and their views on this would be helpful. I look forward to the Minister’s response.

My Lords, I thank the noble Baronesses, Lady Bakewell and Lady Jones, for their questions.

The noble Baroness, Lady Bakewell, asked why the SI had been upgraded to the “made affirmative” emergency procedure. It was to meet the 31 October deadline but also, if this instrument were not approved by Parliament, there would be significant risk to biosecurity in Northern Ireland and to trade with other countries. The relevant Northern Ireland legislation will not remain operable after the UK withdraws from the European Union. These amendments are being made using the operability powers in the European Union (Withdrawal) Act 2018. The drafting simply amends the EU legislation references to post-EU and UK references. The intention is to maintain the status quo and to keep legislation functioning after exit day in the same way as it functions before EU exit. The amendments do not introduce any new policy changes.

The noble Baroness, Lady Jones, wanted assurances that there would be no further corrections. This SI ensures that all these errors are amended. In the course of drafting it, all 25 previous SIs were rescrutinised as part of the process. I hope that means that we are not going to be coming back here again.

The noble Baroness, Lady Jones, also asked about what consultation or stakeholder engagement had been carried out, with whom and when. There was a quite considerable amount of stakeholder contribution, including a consultation with Northern Ireland stake- holders which was very targeted. There was also a special website in which people could be involved. A lot of consultation took place with the Ulster Farmers’ Union. Six workshops were carried out across Northern Ireland in which farmers could take part. A Minister went over to speak to Northern Ireland stakeholders and put them at ease. The Ulster Farmers’ Union is happy with the SI and what it is trying to do.

I hope noble Lords are happy that I have answered all questions. I thank the noble Baronesses for being here. Could this be our last SI? Who knows? One can always hope.

Motion Agreed

Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Common Fisheries Policy and Animals (Amendment etc.) (EU Exit) Regulations 2019.

Relevant document: 2nd Report from the Secondary Legislation Scrutiny Committee

My Lords, this instrument makes technical amendments to ensure that retained EU law is effective and enforceable while also providing continuity to businesses and protection for the environment. No policy changes are being made and no change is expected in the way that the fishing industry conducts its activities as a result of this instrument.

The principal purpose of these regulations is to amend EU legislation that has come into effect since the previous fisheries EU exit SIs were made. This instrument will ensure that existing technical conservation measures continue to apply as part of UK law and will maintain the effective operation in UK waters of long-term plans for the sustainable management of fish stocks in the North Sea and the western waters. Where provisions confer powers to exercise legislative functions on the EU Commission or member states, those references are, generally speaking, changed to “a fisheries administration”.

The SI before your Lordships makes a number of adjustments to three pieces of retained EU legislation, but they make no changes to policy. First, it makes updates to the technical conservation regulation, which outlines technical rules that fishing vessels must adhere to for conservation purposes. This regulation is essential for the management of the fisheries activities of UK vessels wherever they are, and non-UK vessels in UK waters. The technical conservation regulation was previously made operable in retained UK law through an EU exit statutory instrument made in March 2019. However, the EU subsequently introduced revisions to that regulation in July. The UK was fully engaged in the process of revising the regulation which makes important changes, such as introducing a ban on pulse fishing from July 2021 and measures to support implementation of the landing obligation. UK fishermen are currently bound by the EU regulation, which is important to protect the marine environment, and the changes we are discussing today will ensure that they continue to fish to the latest standards by making the regulation operate in UK law.

Secondly, this SI completes the transfer of the North Sea multiannual plan into retained EU law. This establishes long-term plans for the recovery and sustainable management of mixed fisheries in the North Sea. The bulk of the legislation has previously been made operable in UK law. This SI completes the process by bringing across legislative powers necessary to introduce or amend the details of the plan. These powers to make legislation were previously conferred upon the European Commission, whereas they will now be exercisable by UK Administrations, and parliamentarians will be able to scrutinise them in a way that has not been possible hitherto.

Thirdly, this SI makes necessary amendments to the western waters multiannual plan. Almost identical to the North Sea multiannual plan, this establishes a long-term plan for the recovery and sustainable management of mixed fisheries in the western waters, of which UK waters form a part. The instrument makes minor technical changes such as amending references from “Union waters” to “United Kingdom waters” and removing references to “common fisheries policy” or “the Council” to ensure that the legislation operates correctly as part of retained EU law. We are making these amendments to this plan now as it was published only in March 2019, and we were therefore unable to include it in previous instruments.

This instrument also amends previous marine and fisheries EU exit statutory instruments—the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2019, the Common Fisheries Policy and Aquaculture (Amendment etc.) (EU Exit) Regulations 2019 and the Common Fisheries Policy (Amendment etc.) (EU Exit) (No. 2) Regulations 2019—as a consequence of changes made to the EU regulations since those previous instruments were passed by this House. Such minor changes include: the revocation of certain regulations relating to regional fisheries management organisations and a Community Fisheries Control Agency, which have been revoked at EU level and which will therefore no longer form part of retained EU law, and a minor change to the amendments to the North Sea discard plan, which has since been amended by the Commission. This ensures that our amendments to retained EU law are up to date with the legislation which will be transferred on to the UK statute book by the European Union (Withdrawal) Act 2018 on exit day.

I am afraid that there were a number of typographical errors in these previous instruments which we have taken the opportunity to correct: for instance, replacing a reference to the singular “member state” with the plural, “member states”. We have also changed a handful of amendments to the annual EU TAC and quotas regulation, made by a previous instrument. In particular, we have amended provisions relating to commercial and recreational bass fishing to ensure continuity of approach after we leave the EU.

Finally, we have taken the opportunity to amend the Animals (Legislative Functions) (EU Exit) Regulations 2019 to prevent duplicate amendments to the retained EU law version of Council Regulation (EC) No. 1/2005 on the protection of animals during transport and related operations. In particular, it removes an unnecessary power to make regulations about animals not covered by the regulation’s annexes. This power, which was originally conferred on member states, is not necessary because we are rolling forward a power—originally conferred on the European Council—to amend the annexes themselves. Similarly, a second amendment to a technical rule for transporting horses has been removed because it duplicated an amendment made by a different instrument: the Animal Welfare (Amendment) (EU Exit) Regulations 2019. Both of these minor changes ensure that we have the tidiest—the word used here—possible statute book before exit.

I reiterate that, although I have raised some substantial matters, particularly on fisheries, these are purely technical changes that are intended to simplify the statute book. They will in no way dilute or alter the ability of the Government to maintain current standards of protection, for instance of animals.

While there is no statutory duty to consult on this instrument, as is customary we have liaised with stakeholders about future fisheries policy as well as the approach taken by this instrument and other instruments made under the EU withdrawal Act. We have worked to ensure that stakeholders understand that this SI makes necessary technical amendments to retained EU law, which will ensure that we maintain a fully functioning and up-to-date statute book. Indeed, stakeholders have expressed gratitude for our engagement with them on this and earlier instruments.

Given that this instrument relates to devolved matters, all four Administrations have given their consent to Defra laying it on their behalf. This means that the powers will be made operable for England, Wales, Scotland, and Northern Ireland after exit. As with our approach to previous fisheries instruments made under the withdrawal Act, we have worked to develop and draft the instrument in close co-operation with each Administration.

This instrument makes retained EU law effective as part of UK law in these important areas. I beg to move.

My Lords, I have a couple of questions for the Minister, whom I thank for the extensive explanation of this fairly long bit of modification to an existing statutory instrument. As the Minister mentioned, fishing is all devolved, and this will take care of converting EU legislation so that it can be used by the various Administrations. Is any consideration required, or has any taken place, on having a framework for fishing in the UK? So many of the EU powers that are being devolved could do with a UK framework as a background to allowing all these things. However, the various devolved Administrations are very protective of their powers and I realise that it must be difficult to find a framework that will fit. When my noble friend the Minister mentions tidying up the statute book, I wonder whether the Government are relying on individual businesses that are interested in this legislation to correct their own copies. There is a massive amount of alteration in this instrument and if the Government could produce an amalgamated version, that would help.

I thank my noble friend for his elegant and succinct summary of this long SI. I would like to ask a couple of questions. The first is about the enforcement of these fisheries rules. Page 14 has a reference to Article 23 and to projects involving “catches and discards” and so on. I remember from the time when I worked in the fisheries department, at what is now Defra, that enforcement of the rules is actually as important as the statutory framework itself. We are obviously moving from an EU-based system to a UK one, and in some cases to a devolved system. It may be beyond the reach of this SI, but can the Minister say anything reassuring about enforcement? Vessels will obviously come from other EU member states; they may not always be punctilious about discards and catches. Our own fishermen also need to be properly protected.

The second point is on the issue of errors, which we heard about in the previous debate and again here. Are any steps being taken, as part of the Brexit process and more generally, to minimise the amount of errors that there are in SIs? If an SI is wrong even in terms of one spelling mistake, my recollection is that you have to re-lay it. I found this to be a problem when I was in the business department, so I took steps to make sure that the SIs did not come through with errors in them. “Right first time” is obviously a good principle. Can anything be done in that area to help? I am sure that we will have a lot more SIs as work on Brexit continues into the more detailed areas.

My Lords, I apologise to my noble friend Lord Gardiner and to the Committee for having missed the first 45 seconds of his elegant introduction. My noble friend Lady Chisholm dealt with her business faster than I anticipated, so I was caught in the corridor. I am the chairman of the Secondary Legislation Scrutiny Committee, which has looked at this instrument. Our report is in the papers for today’s meeting and our committee was obviously concerned about fishing, because fishing and fisheries policy is quite a hot topic on two grounds. One is that the “take back control” argument rides quite high in fishing; the other is the increased focus today on marine conservation, preservation, resources and so on. The committee also saw that this is a “made affirmative” instrument, and therefore has speedy passage under the European Union (Withdrawal) Act. One is always concerned about how and why it had to be done at this last minute, and so quickly, and whether it meets the requirements laid down in that Act for going through the “made affirmative” procedure.

I heard my noble friend say that this is about tidying up the statute book. Part 2 of the annex to the Explanatory Memorandum indicates that the Minister is required to make an “Appropriateness statement”, and Mr George Eustice has made a statement saying that in his view the SI,

“does no more than is appropriate”.

If we are tidying up the statute book, we do not need to think about that as part of our consideration here. This is nothing to do with tidying up the statute book.

Those are the technical issues. My real concern is the fact that we are moving from two layers of supervision to one. We are coming out of the EU; I understand all that. Up to now, each individual member state has put positions to the EU. The EU has made decisions and those have been passed back to the individual member states. That is clearly not appropriate, it does not work under the new structure. But we now have a situation where Defra is marking its own homework. Nobody is checking and saying whether it is a good decision or a bad decision; Defra is deciding it.

I know that the Government have in mind—we refer to this in our report—to introduce a stand-alone supervisory body to ensure that Defra does not mark its own homework for longer than is strictly necessary. It would be helpful as part of the consideration of this SI if the Minister could update the Committee on where we are with the creation of this new body, when it is going to arrive—I imagine as part of the Environment Bill—and how it is going to develop. Can he also generally reassure the Committee that we have in mind to ensure a proper a balance of powers, and that the Government, in the shape of Defra, will not have all the cards for longer than is necessary?

My Lords, I, too, thank the Minister for his explanation, although I was disappointed in that he pointed out that there will be greater opportunity for scrutiny in future, as I assure him that my colleagues on the EU Energy and Environment Sub-Committee, including the noble Duke, the Duke of Montrose, scrutinise very carefully all the Explanatory Memorandums and everything else that comes through the department as does, I am sure, my colleague in the European Parliament, Mr Chris Davies, who is chair of the Fisheries Committee there. The scrutiny might be different, but it will be, I hope, as good as what we do at the moment.

That brings me to one of the items that we looked at in our committee meeting this morning, although it might seem slightly irrelevant: the Council regulation on fish stocks in the Baltic Sea, an area of European waters that has particular issues. I was interested in a comment made by the noble Baroness, Lady Jones, on the previous SI about dates, because that Explanatory Memorandum said that the UK is leaving the EU whatever the circumstances on 31 October 2019. I am not making a point on that. My serious point is that I note from the Explanatory Memorandum that this SI is necessary partly because the date of 29 March is no longer applicable. I would like reassurance that whatever date we leave—if we leave—we will not have to go through this process again; for example, if the date moves from 31 January to, say, 14 January, because Brexit gets sorted out earlier. Is this SI now robust in respect of dates?

I am grateful to the noble Lord, Lord Hodgson. He struck a key point in relation to the office of environmental protection, which was in the draft environment Bill but was, to a degree, amended to become more robust in the Environment Bill that will now be lost with the Dissolution of Parliament. Will the Minister confirm two things? First, when that body is established, will it include the marine area? I am almost certain that it will because the Bill mentions waters and so on, but I would like to understand that more clearly. Will the responsibility of the OEP extend to the territorial waters, the EEZ line, or, indeed, to wherever British fishing vessels fish, even in international waters? More importantly—this is exactly the point made by the noble Lord, Lord Hodgson—how long are we likely to have to wait until that body is established and what will happen in the meantime? How will we make sure that the decisions made post Brexit by Defra are enforced and that, exactly as the noble Baroness said, Defra is not just marking its own homework.

It seems to me that our marine environment is as important as our terrestrial environment. On that theme, as the Minister will know, there is an overall target for all stocks in the common fisheries policy to be sustainable in terms of MSY by 2020. That is next year, and the rest of those stocks will be agreed, with scientific advice, in December this year. One of the cod stocks in the Baltic Sea is not at a sustainable level, so this principle has already been broken. If that is true for some of our own stocks in the North Sea and the western waters, will Defra actually change the stocks post Brexit—if that happens—to a sustainable level in the waters over which we have control, thus at least maintaining the government policy, as I understand it, to retain sustainability not just within a CFP context but in our own waters?

Another area mentioned by the Minister, which is in the Explanatory Memorandum, is regional management fisheries organisations beyond territorial waters and EEZs. Through the EU, we were signatories to a number of them, and I know that we are trying to rejoin a number of them, including the Indian Ocean Tuna Commission. The most important one is the North East Atlantic Fisheries Commission, an important if imperfect conservation organisation. Have we now joined it? Are we a member of that organisation so that we can participate in its actions?

As the noble Baroness, Lady Neville-Rolfe, said, enforcement is key to this. I entirely accept that the Government wish the landing obligation to remain, so that the discard ban will continue and will be enforced post Brexit. However, and I understand the questions here, traditional control methods do not work to stop discarding. Just having a fleet of vessels that plod around inspecting other vessels does not really work in terms of the landing obligation. I would be very interested to understand the Government’s position on this and whether they have started to move on remote electronic monitoring, which is the only tool in the box that really works for this challenge.

My Lords, I thank the Minister for his introduction to this SI and for organising a helpful briefing beforehand. I also thank all noble Lords who have contributed to this discussion.

At the outset I will say something about the overall content of this SI. I find it amazing that an SI dealing primarily with amendments to the common fisheries legislation also has buried away in it amendments to the transport of animals regulations. This is particularly irritating as we dealt this afternoon with a separate SI on animal welfare; it would have made much more sense to have included these amendments in that.

It is even more concerning since the Minister of State, George Eustice, stated in the other place that the Government had no intention of consolidating these SIs into a meaningful piece of legislation, which would have made more sense for those working in the sector and abiding by the rules. So do the Minister’s civil servants consult before issuing what seem to be random pieces of legislation that do not bear any connection? Does he agree that this is not the best way to go about making legislation that could be on the statute book for some time before being superseded by new primary legislation? While we are on the subject of primary legislation, can the Minister shed some light on when the fisheries Bill is likely to see the light of day? It might address some of the issues raised this afternoon.

Returning to the specifics of this SI, it appears to make a number of detailed changes to fishing regulations, which I want to understand a little better. First, paragraph 7.2 of the Explanatory Memorandum says that the definition a “fisheries administration”, which is the new phrase that we are adopting, means,

“the Secretary of State, a devolved fisheries administration or the Marine Management Organisation”.

However, paragraph 7.6 goes on to state:

“The MMO is also listed as ‘a fisheries administration’ in the retained EU law of which the relevant regulations form part, but the MMO does not have any legislative functions”.

Given that this legislation hands considerable powers to the fishing administration, can the Minister clarify whether this will hand new powers to the MMO that it did not exercise before? What is the meaning of what appear to be slight contradictions in the phraseology of those two paragraphs?

Secondly, turning to the text of the legislation itself, proposed new paragraph (2) in Regulation 5(12) refers to the Secretary of State being able to amend the fishing areas set out in Annex 2, taking into account the impact of displacement fishing activity on “other sensitive areas”. Is there a definition of what is meant by “other sensitive areas”? Is this a phrase used by the EU, because it would seem to have quite a wide range of interpretations?

Similarly, on the subject of definitions, proposed new paragraph (1) in Regulation 5(20) refers to assessing the impact of “innovative fishing gear”. How will that be defined, given that one would think that modifications and improvements to the gear happen on a regular basis? I raise the issue because, in part, it goes to the heart of what the noble Baroness, Lady Neville-Rolfe, said, which concerned enforcement. As long as there is phraseology like that, which can be interpreted by fishers or businesses in different ways, it makes enforcement very difficult. We do not want to allow people to swim through the net and escape the regulations that would otherwise apply to them, so some clarification on that point would be helpful.

Thirdly, the Minister will have seen reference in the Secondary Legislation Scrutiny Committee report to concerns raised by the Green Alliance; the noble Lord, Lord Hodgson, also raised this issue. One of its concerns, which the noble Lord very helpfully repeated, was that the existing EU provisions enable joint recommendations by member states to change or repeal technical measures on fishing conservation. This SI subsumes the joint recommendations into the powers of the fisheries administrations, which can act alone—and, as we know, that will often be the Secretary of State acting alone.

When this issue was raised, Defra’s response was that joint recommendations,

“would not work as a concept in the new regime”.

However, this issue goes to the heart of many of our concerns about EU withdrawal: namely, that we seem to have lost the advantages of collaboration and shared decision-making, which in the past ensured that we came out with more balanced, well-founded outcomes. Instead, we have one body that is not really accountable —as noble Lords said, it will effectively mark its own homework—and which can be subject to all kinds of political and short-term economic pressures, which might result in cutting corners on conservation. Picking up on the points made by the noble Lord, Lord Teverson, will the Minister explain how the Government intend to put back those layers of scrutiny and accountability in the forthcoming Environment Bill and the fisheries Bill?

Fourthly, the SI sets out new arrangements for the western waters multilateral plan and the North Sea multilateral plan. Will the Minister clarify the wording in the SI? Does it refer to the outcome of those multilateral agreements? Does it mirror what is being introduced by all the other nations that are party to the agreements, or have we put our own interpretation on the existing agreements?

Finally, it is clearly important that the devolved Administrations work together on fisheries, as fish do not respect national borders. This issue was raised by the noble Duke, the Duke of Montrose. In future, how will the devolved Administrations work together? Can the Minister clarify what arrangements are in place for ongoing dialogue between the devolved Administrations’ fishing administrations? What arrangements are being put in place to resolve any conflicts that may occur, given that we will be on our own in trying to resolve them and will not have a higher authority to appeal to when disagreements occur?

Will the Minister also explain the implications of Boris Johnson’s withdrawal Bill for Northern Ireland fishers? Is it the case that the Northern Ireland protocol includes the territorial land but not the territorial waters, so the customs territory of the land is in Northern Ireland but the sea and the fish in the sea are retained by the UK? If you are a Northern Ireland fisher fishing in the coastal waters around Northern Ireland, will your fish be designated as UK and not Northern Irish for customs purposes? What would happen if a Northern Ireland trawler landed its catch in Scotland for processing and the processed fish was destined for the EU? What would happen if a trawler landed its catch in the Republic and the fish was passed back to the UK market? Those are examples of what could be very complicated arrangements for Northern Ireland fishers. They clearly have big political implications, but they go to the heart of those individuals’ livelihoods.

Michel Barnier has said that a free-trade agreement could take around three years to negotiate. The Northern Ireland protocol would therefore be in effect until that agreement came into force—or, if there is no deal at the end of the transition period, it would remain in place until 2024 at the earliest. So I would be grateful if the Minister could clarify the status of the catch of Northern Ireland fishers in the different circumstances that may arise over the next four years. I know that this is a specific question, but it is important and goes to the heart of the EU withdrawal arrangements that we are discussing. I look forward to the Minister’s response.

My Lords, I am most grateful to all noble Lords for their rightly penetrating questions. I stress that the purpose of this instrument is overwhelmingly to ensure that we have the most up-to-date statute book. As I say, there are no policy changes in it.

My noble friend the Duke of Montrose and the noble Baroness, Lady Jones of Whitchurch, asked about devolution. The UK Government and the devolved Administrations have agreed that it is essential to maintain common approaches in a number of areas after we leave. We are therefore working together to develop a new UK framework made up of legislative and non-legislative elements. Clearly, the Fisheries Bill—which sets out shared objectives as a key legislative element—includes a requirement to publish a joint fisheries statement, which will be drafted jointly by the four Administrations and will contain policies that address these shared objectives. The policies in the joint fisheries statement will be binding. Non-legislative elements include a memorandum of understanding, which would build on the existing fisheries concordat and UK-wide quota management rules.

We know that Parliament will be dissolved, so it is absurd for me to try to say when the Fisheries Bill will come back. This is another piece of primary legislation that, whatever the outcome of the general election, will no doubt have to be addressed.

My noble friend the Duke of Montrose and the noble Baroness, Lady Jones of Whitchurch, raised the issue of amalgamation consolidation. We all understand that EU law comprises a large number of regulations dealing with different areas. The purpose of the withdrawal Act SIs is to ensure continuity by making retained EU law operate correctly on exit. That is why—I choose these words carefully—no consolidation of the SIs themselves is planned. However, importantly, the National Archives has launched two new services. The first is a new EU exit website archive; the second is the addition of EU legislation to the Government’s legislation website, This brings together the text of EU legislation and details of the UK corrections, as well as some additional features, including a timeline of the changes so far. We believe that these two services will help to aid legal certainty and support research in preparation for leaving. After we leave, the National Archives will maintain the EU legislation on legislation., incorporating amendments made by the UK into the texts.

Can I clarify something? When we had the briefing earlier, we talked about there being almost a master version that people could access, even if it was not widely published. The Minister implied that this is not what the National Archives is doing. Can he clarify that there will be a master document that brings all this together and which is easily accessible for all stakeholders and businesses who want to access it?

Yes, I can. My purpose in reading out, “This brings together the texts of EU legislation and details of the UK corrections”, is precisely this: I think that we discussed it at earlier meetings and it makes common sense. The only way that I can understand any of this—my goodness me, we have done more than 180 of these—is to read the Explanatory Memorandum rather than the SI. Unless one has that amalgamation or consolidation, the SIs alone are very difficult to decipher. That is precisely why I read out what I did about the work that is going on: so that there will be clarity and understanding.

My noble friend Lady Neville-Rolfe asked about the all-important issue of enforcement. In England, our enforcement system is delivered by a number of agencies working in partnership—in particular, the Marine Management Organisation, or MMO, the Inshore Fisheries and Conservation Authority and the Royal Navy. Patrols are undertaken by the Royal Navy’s offshore patrols vessels, and physical checks and surveillance by the MMO, using a combination of monitoring systems including vessel monitoring, electronic reporting and data systems and remote electronic monitoring. Although the noble Lord, Lord West of Spithead, is not in his place, he and I went up to the MMO at Newcastle and had an interesting look at this. The noble Lord was particularly pleased because many of the officials were originally from the Royal Navy. There is a recognition that there will be an increase in control and enforcement capability, including increased personnel to train as warranted marine enforcement officers and act in support roles at the MMO, and greater levels of aerial and surface surveillance.

I should probably say that control and enforcement is a devolved matter. Nevertheless, Defra, the Scottish Government, the Welsh Government and the Northern Ireland Executive are working closely together to share information and ensure a robust approach to monitoring, compliance and enforcement across UK waters.

I have a caveat. I fully welcome the extra resources that the MMO has and the fact that the Navy is doing that. The Navy has been largely absent from monitoring recently, because it has been dealing with other border security issues. However, the difficulty is that that budget is mainly financed from the Brexit process. Many of us do not have a lot of faith given the fact that, as the Minister will know, Defra is always on the front line regarding budget cuts, and once we get through Brexit—if indeed we do— frankly, those extra budgets will disappear and we will be back to where we are, with all the enforcement challenges that we had prior to that. I am not asking the Minister for a reply but warning him, in case he stays in office.

I am not sure that I am allowed to comment, but I was rather reassured by the list that that my noble friend read out and the fact that the Navy will now be more involved—as indeed it used to be historically, before Defra experienced cuts. It feels as though fisheries, if we get Brexit, will become a more important national asset, which will therefore justify the expenditure. I hope that that will be respected by Ministers when they come to look at these budgets.

The interventions by the noble Lord and my noble friend have inspired me to say a little more. Currently, we have two Royal Navy Batch One offshore patrol vessels assigned to fisheries protection duty. Over time these will be replaced by five, more capable, Batch Two OPVs. In addition, the MMO has appointed three commercial operators to be on standby to provide extra boats for enforcement duties, should additional support be required. The point which the noble Lord made is of course a challenge to whoever has those responsibilities, but my noble friend is absolutely right. On sustainable fisheries and ensuring that those principles are adhered to, my guess is that there will be a strong public feeling—a strong desire—given the responsibility in UK waters for that. A Government would be brave to start trimming that when there could be that potential pressure.

My noble friend can rely on us to make it clear if we feel that not enough is being done in this important area of sustainability and its enforcement.

I have no doubt that that will be the case with all your Lordships—noble friends and noble Lords—and rightly so. Clearly, if we do not have sustainable fisheries in the end, we will have no fish, and that cannot be good for the ecosystem or for food production.

The noble Lord, Lord Teverson, again asked for reassurances on dates. If the EU introduces new fisheries measures between now and whenever, obviously we will want to make them operable so that everyone concerned in this world would have an up-to-date statute book.

My noble friend Lady Neville-Rolfe and the noble Baroness, Lady Jones of Whitchurch, mentioned errors. I am conscious of that and I take responsibility—and of course, it drives me mad. There is a normal checking process, which includes second and third-eyes checks by Defra and other government lawyers. They are also checked by policy officials and lawyers in the devolved Administrations, as well as being scrutinised by the JCSI. All government departments have rigorous checking procedures for EU exit SIs, and indeed any SI. All I can say is—I do not mean this glibly—that I very much regret even a single one, let alone the number that I have had to explain to your Lordships. We are distinguished to have the Secondary Legislation Scrutiny Committee’s chairman, my noble friend Lord Hodgson, observing our deliberations. I know that the department replied to all the points made by the committee.

On the question of governance, the oversight function that the Commission currently holds over member states could, for example in England, definitely be taken on by the OEP, as detailed in the Environment Bill. Yes, we have had a Second Reading, but we know that this will have to come back. The OEP will be capable of holding the Government to account on their compliance with environmental laws. It will be able to take enforcement action and be required to monitor our progress on improving the natural environment. It will produce its own annual reports on its activities.

My noble friend Lord Hodgson and the noble Baroness, Lady Jones of Whitchurch, referred to oversights. The issue of the power in Article 15 also requires the Secretary of State to obtain scientific evidence to support any measures contained in regulations made under that power, as well as to consult,

“such bodies or persons as appear to the fisheries administration to be representative of the interests likely to be substantially affected by the regulations”.

In addition, I should say to my noble friend Lord Hodgson that we are working with industry and NGOs to establish a replacement fisheries advisory infrastructure for the United Kingdom that can be put in place after we leave. We have a number of established models for consultation with stakeholders, work closely with fisheries science partnerships around the country and have a multi-stakeholder expert advisory group to consider EU exit issues.

I will go through some other points. I agree with the noble Baroness, Lady Jones of Whitchurch, that it is not ideal to have a fisheries SI in which there is a section on animals, but I will seek to explain why things have happened in this way. These amendments are included in the instrument because they required an affirmative SI—since the amendments deal with transfers of powers—as well as being in an instrument that we wanted to be in force for exit day. I do not want to go into the history of this but all the work was done on the basis of a certain exit date and we, as a responsible Government, felt that we had to cover all eventualities. We have all worked together, extremely collaboratively, to ensure that no one can say we have not done our work in getting the statute book where we might have needed it to be. As I say, the instrument is to ensure the law is absolutely clear from exit day. There have been other SIs related to animal health but those had already been laid in Parliament, meaning that, at the time, this SI was the best available vehicle for these changes. I agree that us securing an SI containing this subject would have been preferable but, on this occasion, given that the amendments simply remove inadvertent duplications, I plead with your Lordships to understand that we thought that this was the most appropriate instrument available.

The noble Lord, Lord Teverson, mentioned the discard ban, which the Government obviously need to address. We recognise the importance of the effective monitoring, control and enforcement of the landing obligation. For this reason, work has been undertaken this year to enhance our control and enforcement approach. For example, to complement measures to ensure that fishers have the right resources and information to be able to comply with the landing obligation, the MMO has focused its efforts on identifying non-compliance and improving the accuracy of catch recording, particularly in high-risk fisheries. Between 2018 and 2019, the MMO more than doubled the number of inspections of landings, and also nearly doubled the number of inspections at sea. The noble Lord also asked about the regional fisheries management organisations. We have applied to join the North East Atlantic Fisheries Commission but, as I think he will know better than me, we cannot join until we have ceased to be a member state.

The noble Baroness, Lady Jones of Whitchurch, asked about fisheries administration and the MMO, and how all that comes about. The powers of the MMO are set out in the Marine and Coastal Access Act 2009. It has a number of its own fisheries management functions, such as the licensing of fishing vessels. The MMO is also responsible for fisheries enforcement and has functions relating to protecting the marine environment. The MMO is included in the definition of “fisheries administration” in the statutory instruments made under the EU withdrawal Act 2018 because it carries out these key fisheries functions. She also asked about the definition of “other sensitive areas”. Article 12 is intended to protect sensitive habitats, which are defined in Regulation (EU) 2019/1241 as,

“a habitat whose conservation status, including its extent and the condition (structure and function) of its biotic and abiotic components, is adversely affected by pressures arising from human activities, including fishing activities”.

I think that answers that point.

The intriguing term “innovative fishing gear” is used in the EU measure being amended. It is generally understood as fishing gear that: improves fishing selectivity for an intended target species, or reduces or eliminates by-catch or incidental catches of sensitive species, for example marine mammals, seabirds, and marine reptiles; and reduces the impact of fishing activity on the habitat, protecting vulnerable marine ecosystems and generally reducing the impact of bottom fishing methods on the seabed. The arrangements for introducing innovative gear require scientific assessment to ensure that the standards achieved are at least equivalent to existing methods, and certainly do not have a negative impact on sensitive habitats or non-target species.

The noble Baroness, Lady Jones of Whitchurch, asked about regional co-operation. We fully intend, of course, to continue to work with other countries that share our waters. Indeed, under the United Nations Convention on the Law of the Sea—UNCLOS—the UK is obliged to co-operate on the management of shared stocks through appropriate regional and sub-regional organisations, such as the regional fisheries management organisations. This obligation will continue to apply to the UK when we leave. Formal co-operation will also continue through the Ospar Convention, where contracting parties agree policies and strategies on environmental management across the north-east Atlantic. She also raised the process of agreeing our participation in the multiannual plans. The EU regulations already apply to our fishers, as they do to other member states. We are simply making the minimum necessary changes to the wording to ensure that the plans operate correctly as part of the UK’s statute book when we are an independent coastal state. The terms and requirements of the plans, within our waters, have not changed.

The noble Baroness also asked about our devolution arrangements, which I have already mentioned. The Northern Ireland protocol in the withdrawal agreement applies EU customs legislation in Northern Ireland but excludes territorial waters extending between zero and 12 nautical miles. The protocol sets out that the Joint Committee will consider means to ensure that tariffs are not applied to direct landings of fish and aquaculture products by Northern Ireland-registered fishing vessels. This will bring these products in line with others that are of Northern Irish origin.

There was also a query about Northern Ireland fisheries fishing in UK waters rather than in Northern Ireland waters. The designation of their catches will depend on where they are landed. The implications from the tariff perspective will be determined by the destination of those landings and exports. These important matters of detail will be considered by the Joint Committee, which is chaired by both the UK and the EU.

I will look at Hansard, because I think there may have been some other technical points, but I hope that I have covered most of them. On that basis, I recommend these regulations to your Lordships.

Motion agreed.

Railways (Safety, Access, Management and Interoperability) (Miscellaneous Amendments and Transitional Provision) (EU Exit) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Railways (Safety, Access, Management and Inter- operability) (Miscellaneous Amendments and Transitional Provision) (EU Exit) Regulations 2019.

Relevant document: 2nd Report from the Secondary Legislation Scrutiny Committee

My Lords, I will start by explaining why we are considering this instrument under the urgent “made affirmative” procedure provided for in the European Union (Withdrawal) Act 2018.

This instrument is important for ensuring clarity and certainty for the rail industry and passengers. It fixes deficiencies in a number of pieces of rail-related legislation, including important changes to the rail safety legislative framework and corrections to minor issues in previous Brexit-related instruments raised by the JCSI.

The Government committed in previous debates on rail Brexit legislation in this House and to the JCSI that the rail safety amendments and the issues identified by the JCSI would be fixed in time for the UK’s exit from the EU. We gave very careful consideration to the appropriate procedure for this instrument. Providing certainty and clarity to industry and passengers is an absolute priority.

We concluded that in order to provide the right level of certainty and fulfil commitments made to this House and to industry, this instrument needed to be in place for exit day. Therefore, this instrument was signed and laid on 7 October using the urgent “made affirmative” procedure. Noble Lords will be aware that the Article 50 extension letter was not sent until 19 October, and the extension was agreed only on 28 October.

Turning to what this instrument does, its most significant provision is to introduce in Great Britain a two-year recognition period for Part A safety certificates issued in the EU before exit day by amending the Rail Safety (Amendment etc.) (EU Exit) Regulations 2019. It will also make corrections to EU implementing legislation that has come into effect since 12 April 2019, as well as some further minor corrections to earlier implementing legislation.

I will now provide some background information on the changes being made by this instrument, including Part A safety certificates. Part A safety certificates are valid for up to five years and are an essential piece of documentation for operators seeking to operate trains in Great Britain. They are issued by the ORR and set out the essential safety arrangements and systems a train operator has in place to run trains competently and safely.

This instrument will introduce a two-year recognition period for existing Part A safety certificates issued in the EU as part of establishing full regulatory control of our rail safety regime. This gives certainty that EU-issued Part A safety certificates will continue to be recognised for the purpose of operating trains on the mainline railway in Great Britain for two years after Brexit or until they expire, whichever is the sooner. A train operator will then need to apply to the ORR for a new Part A safety certificate and accompanying Part B safety certificate. Two years provide an appropriate amount of time in which industry can prepare and align itself with the GB domestic certification regime and are consistent with recognition periods introduced in other rail-related Brexit legislation. This SI also enables GB-appropriate control, which we will use to maintain our excellent safety record. Safety is always the number one priority on the railway.

Only one operator has been identified as providing services in Great Britain using a Part A safety certificate issued in another EU member state. The operator is RTS Rail Transport Service GmbH. Officials from my department and the ORR have actively engaged with the operator concerned to ensure that it is prepared for Brexit, and its application for a new Part A certificate is well advanced.

Turning to the amendments correcting issues in previous Brexit-related instruments, I reassure noble Lords that the instrument we are considering today has been through pre-legislative scrutiny by the JCSI which returned it without comment. It was also considered by the JCSI in its meeting of 16 October and was not identified as an instrument to be brought to the attention of the House. The JCSI identified minor drafting issues in two previous rail Brexit instruments. I am sure noble Lords will remember that I detailed at least two of those drafting issues in a previous debate, but just in case I will do so again briefly.

In specific terms, the JCSI identified three missing words in the Railways (Safety Management) (Amendment) (EU Exit) Regulations (Northern Ireland) 2019. They were 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 that this term 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 rather than the label “whole society” in the table at the end of the schedule.

In addition, the JCSI identified minor drafting errors in the Railways (Access, Management and Licensing of Railway Undertakings) (Amendments etc.) (EU Exit) Regulations 2019. Specifically, they were a duplication of a sub-paragraph and an incorrect cross-reference to other legislation. Those errors are corrected in this instrument, and the Government would like to thank the JCSI for pointing them out.

My department has also identified small analogous errors in two other Brexit instruments, the Rail Safety (Amendment etc.) (EU Exit) Regulations 2019 and the Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019. These errors are also corrected in this instrument.

This instrument will also make the usual Brexit-related corrections to EU implementing legislation that has come fully into effect since 12 April 2019. These include corrections such as removing references to “member states” and replacing references to European legislation with references to domestic legislation wherever possible. The instrument also makes some further minor corrections to earlier implementing legislation.

It is important to emphasise that officials have worked closely with the industry throughout the preparation of this instrument and it will welcome the clarity and certainty that it will provide. The provisions contained in this instrument will enable the rail legislative framework to continue to operate effectively after exit day. This instrument provides certainty to the railway industry and passengers and will ensure that the rail legislative framework continues to function effectively after the UK leaves the EU. I commend these regulations to the Committee. I beg to move.

My Lords, I thank the Minister and her officials for talking us through these regulations at a meeting yesterday. I am very grateful for her time. Despite her enthusiasm, I had to supress a weary sense of déjà vu about this, but then I thought of an upside. When the history of this Parliament is written, this SI will go down as one of the significant pieces of legislation passed during this Session which, after all, has lasted only a couple of weeks, so it will have its place in history and therefore I set my mind to looking at it with rather more attention and diligence. But my whole spirit protests at the amount of time that we, and particularly officials, have spent preparing for a no-deal Brexit—an issue which is so damaging that it should never have been a credible option.

This SI fixes deficiencies in previous drafting, as the Minister has noted. I believe that there are four of them; that is quite a lot for such a short piece of legislation. My concern is that officials have been under such pressure to churn out such no-deal legislation, if I can call it that, that it has been very difficult for them to maintain the usual high standards. I had a quiet laugh at the opening line of paragraph 2 of the Explanatory Memorandum, which tells us:

“The Government is committed to leaving the European Union on 31 October”.

I will come back to this later on.

The core purpose of this SI is to put in place a system of recognition of Part A safety certificates for rail operators. It introduces a two-year recognition period, which is flexible according to the renewal date. As the Minister has pointed out to us, this affects only one company but it is symptomatic of the ridiculous position that we are in. Part A certificates are currently EU-portable; the company concerned therefore only has to get them once, and they apply in all EU countries where that company operates. It is proposed that, in future, the ORR will issue Part A certificates. As a result, as the Secondary Legislation Scrutiny Committee’s report observes:

“ORR issued Part A safety certificates will be substantially the same in terms of content compared to EU issued Part A safety certificates, including the requirements necessary to obtain one. However, after the UK leaves the EU ORR issued Part A certificates will not have EU identification numbers, EU symbols or references to the EU. ORR issued Part A safety certificates will not be valid in the EU”.

This is about creating something which is identical in intent but has a different badge. It creates more complexity and bureaucracy; it is very far from the rosy image we were sold in 2016. The effect is of course that the company concerned, and any other company which might come along and need this certificate, will have to get two certificates rather than only one. What is more, since it is a criminal offence to operate a railway without a Part A certificate, the criminal offence has to be adjusted too. What will happen to the mountain of paperwork and complexity that we have created when, or if, we decide not to leave the EU after all? Are we going to have to unwind it painfully, SI by SI, or could we have just one mega-piece of legislation saying: “Forget what we have done for the last year”?

I have another question for the Minister. Paragraph 2.5 of the Explanatory Memorandum says:

“The UK notified the Commission on 29 November 2018 that it intended to transpose the recast Railway Safety Directive by the later permitted transposition deadline of June 2020, though this will depend on the nature of Brexit on 31 October 2019”.

Can the Minister please update us on what the date will be now, since we have not left on 31 October 2019? We are now rolled forward to 31 January 2020. What does this do to those dates? It is important to have that on record because it is, of course, an issue for the railway industry.

Paragraph 2.16 of the Explanatory Memorandum refers to the potential for the ORR to charge a fee. I was relieved to see that it is not intending to do so, but it can as a result of this. Can the Minister indicate what sort, or size, of fee is likely?

Finally—the Minister referred to this in her speech—this SI uses the “made affirmative” procedure. The Minister concerned has attested that this procedure is necessary because this is an urgent piece of legislation, but it is no longer urgent. It was urgent when we were leaving on 31 October or possibly leaving without a deal, but it is no longer urgent until we get to the January deadline. Circumstances have changed. I am concerned, and want to put on record, that the Government have not rethought their approach to this SI and have continued to use this procedure even though the circumstances have changed.

My Lords, I too thank the Minister for explaining the content and purpose of this draft statutory instrument, which relates to a no-deal scenario. I also thank the Minister and her officials for the meeting yesterday. I do not think that anything I am going to say will come entirely as a surprise to the Minister and I am afraid that I will repeat some of the points made by the noble Baroness, Lady Randerson.

I have a number of questions about the content of the Explanatory Memorandum, some of which will, no doubt, relate to issues about which I am still not entirely clear. First, how does an EU portable Part A safety certificate currently differ from a Part A safety certificate from the Office of Rail and Road, if at all, and how will they differ in the future? When introducing this SI, the Minister said that the two-year period to which this SI relates,

“provides an appropriate amount of time in which industry can prepare and align themselves with the Great British domestic certification regime”,

before going on to talk about it giving Great Britain “appropriate control”. In the light of that comment about giving time for the industry to prepare and align itself with the British domestic certification regime, what will the industry have to do in the two-year period to achieve that preparation and alignment with the British domestic certification regime? What actions will it have to take, because there has been talk of there being similarity between the two? It would be helpful if that comment could be clarified; it was also made by the Transport Minister in the Commons when the SI was debated there. I am not entirely clear about what the industry will have to do in that two-year period to prepare and to align itself with the domestic certification regime.

Will operators of services travelling from mainland Europe to the UK require both a UK Part A safety certificate and a Part A certificate issued in an EU member state? Clarification on that point would be helpful. Will a mainland Europe operator with a Part A certificate issued in an EU member state have to acquire a UK Part A safety certificate before bidding for a rail franchise, or will it have to acquire such a certificate only if it is successful in its franchise bid?

What is the position for a train operator in Northern Ireland? What Part A certificate will it require? Will it be a UK one or an EU member state one? Paragraph 4.1 of the Explanatory Memorandum, headed “Extent and Territorial Application”, suggests that, in Northern Ireland, an operator will have an EU member state-issued Part A safety certificate because, as I understand it, it is not covered by the part of the SI that relates to the Part A safety certificates. Once again, some clarification of that issue would be extremely helpful.

In addition, if an operator in Northern Ireland has an EU member state-issued Part A safety certificate, who will issue it and who has issued the current Part A safety certificate? Who has issued the current one and who will issue a future one if the train operator in Northern Ireland had an EU member state Part A certificate rather than one issued by the Office of Rail and Road?

I want to make two points on the Explanatory Memorandum, one of which is exactly the one made by the noble Baroness, Lady Randerson, about paragraph 2.5. I know that I am repeating what has already been said but, to recap, it states:

“The UK notified the Commission on 29 November 2018 that it intended to transpose the recast Railway Safety Directive by the later permitted transposition deadline of June 2020, though this will depend on the nature of Brexit on 31 October 2019”.

My question is slightly different from that posed by the noble Baroness and is simply to ask what the current position is on transposing the recast directive. Since the memorandum refers to it being dependent on the nature of Brexit, how will the nature of Brexit affect the transposition?

Finally, paragraph 2.11 of the Explanatory Memorandum states that, once the UK has left the EU:

“There will be an opportunity for the UK to shape its own railway to meet the needs of our passengers and freight shippers”.

What will we be able to do in the future to shape our own railway that the Government are in effect saying we cannot do at the moment under the present arrangements? I am not entirely clear on the answer to that question.

I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, for this short debate on the SI before us. A number of issues have been raised and I look forward to trying to answer as many questions as possible. As ever, I will write if I miss out anything.

As I would expect from a leading Liberal Democrat, we heard the usual question: “What happens if we don’t leave the EU?” It is quite right for the noble Baroness to pose that question. That is obviously not government policy, so not a huge amount of work has gone into it—but the noble Baroness will know that, in the event that the UK does not leave the EU, all the work that we in government are doing at the moment on no-deal preparations, including these SIs, could be revoked. The SIs would simply fall away.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, asked about the recast of our safety directive. That point is very important and is in flow at the moment; we will certainly need to consider it at some point next year. The recast Directive (EU) 2016/798 on rail safety repeals and replaces the previous rail safety directive, and forms the basis of the regulations that we currently have in place. The key aims of the new directive are: to streamline the application process for rail vehicle authorisations and safety certificates through a single EU one-stop shop; to achieve consistency of regulatory approach between national safety authorities; to achieve much clearer alignment with the European Union Agency for Railways; and to progressively eliminate technical and operational differences between member states’ railways, including through the gradual elimination of national safety rules.

As noble Lords mentioned, the UK has applied for an extension to be in place until 16 June 2020, which has been agreed. Regarding the terms of our departure, if we are in an implementation period at that stage, the recast safety directive will be brought into our legislative framework. I suspect that, if we are still in our positions, we will be back in place to debate it at that time. If there is no deal, the Government of the day can look at the changes that have happened in Europe and decide whether to bring those changes into UK legislation. If the directive is implemented in whole or in part, a consultation with industry will take place, as with any new legislation. Officials have already done much of the work to ensure that the directive could be implemented if it is necessary and desirable.

Moving on to the ORR and its ability to charge a fee, the instrument makes fixes to EU tertiary legislation that allows the ORR to charge a fee. It was clear that the ORR wants to retain that fee-charging ability should it need to in future; essentially, we are retaining the status quo. However, the ORR has advised that it does not currently charge a fee in its role in determining applications for access to the rail network but that it wishes to retain the ability to charge a fee should it need to—which is the status quo. However, if a fee were to be charged in future, it would be subject to consultation with the industry.

The noble Baroness, Lady Randerson, also mentioned the “made affirmative” procedure and asked whether it was still appropriate for this instrument to be brought through your Lordships’ House under that procedure. I suspect that it is. The debate taking place today is happening prior to the date on which a no-deal exit would otherwise have happened. Therefore, the significant difference between the “made affirmative” procedure and the normal affirmative procedure is not substantial in this case. Had we done it the other way, we may well have had the debate on the same day—but it was absolutely clear to us that we needed to make sure, had this debate not been able to be scheduled, for example, that certainty would be available to the industry. That is why we used the “made affirmative” procedure. We could have gone back and withdrawn the SI, then tabled it again under the new procedure—but, in practical terms, I am not sure that it would have made any real difference.

The noble Lord, Lord Rosser, brought up the subject of safety certificates in future and asked whether there would be divergence. We may want to diverge in future; one of the benefits of Brexit is being able to take control of the sorts of regulatory systems that we might find beneficial. Safety has always been a priority for this Government and for Governments before us, and it may be that, in future, we diverge from the EU in certain areas with regard to the safety framework. We are definitely not going to lower our safety standards, but we might do things differently. But things may change and, in future, EU operators wishing to operate in the UK will have to get a safety certificate from the UK, and that will be under the new regime. Obviously, this would have to go through your Lordships’ House and there are many steps to be taken in that process.

If we look at UK companies which operate in the EU, at the moment Eurostar has services to France and Belgium. It has set up a French subsidiary, so it has both its UK licence and its EU licence from its French subsidiary which enables it to continue to operate services.

The noble Lord, Lord Rosser, asked what industry will have to do to align itself. I suspect that the wording in the Explanatory Memorandum is possibly a little overblown in this area. In reality, at the moment very little alignment needs to happen because we are fully aligned. If the industry needs to do anything—and we are talking about one operator—it is to familiarise itself with the process of the new application system with the ORR because companies will have used a different member state authority to get their original Part A safety certificate. They will have to get used to dealing with the ORR as the new regulator for their safety certificate.

Turning to Northern Ireland, noble Lords will know that rail is a transferred matter. In the absence of a functioning Northern Ireland Executive, policy in Northern Ireland cannot be changed. It has been agreed with the Department for Infrastructure that we will take forward legislation on its behalf to preserve the status quo. At present, safety certificates in Northern Ireland are issued by the Department for Infrastructure and it will continue to do so. They will remain valid—there is no two-year cut-off for services within Northern Ireland. Decisions on future legislation will be a matter for a future Northern Ireland Executive. There is some divergence between GB and NI in this instrument, which is why parts of it are applicable to certain areas. The intention is to introduce a two-year time limit on the recognition of Part A safety certificates as a specific policy choice, but it cannot be imposed on Northern Ireland in the absence of an Executive.

The noble Lord, Lord Rosser, mentioned franchise bidders. This is an important issue because there are many overseas companies involved in our railways and we welcome their involvement. They must have a safety certificate in place prior to operating their services. Operating companies have a UK base so they would make the application.

I hope that I have answered all the questions, unless the noble Lord, Lord Rosser, is going to challenge me on that one.

Paragraph 2.11 of the Explanatory Memorandum states that,

“once the UK has left the EU we will have the flexibility to diverge from EU rail law where it is in the UK’s interest to do so, whilst maintaining our excellent safety record. There will be an opportunity for the UK to shape its own railway to meet the needs of our passengers and freight shippers”.

The inference is that we do not have that opportunity under the current arrangements. What are these opportunities to shape our own railway to meet the needs of our passengers and freight shippers that we do not have at the moment because of current arrangements?

Also, on the bit about alignment with the British domestic certification regime, I think that was something the noble Baroness the Minister said in her introduction, but it was certainly something the Minister of State said when this matter was being discussed in the House of Commons. Those were the words he used—so it is hardly the Explanatory Memorandum; it was actually what the Minister said when he referred to,

“an appropriate amount of time for the industry to prepare and align itself”,

with what he described as,

“the Great British domestic certification regime”.—[Official Report, Commons, 21/10/19; col. 4.]

I get the impression from the Minister’s answer on behalf of the Government that maybe that was some slightly flowery wording and perhaps he got a bit carried away with himself.

I could not possibly comment on the words of my honourable friend in the other place, and I will go no further on that, but if I can shed any light, I will happily write to the noble Lord.

The words missing from the Explanatory Memorandum are “future needs”. Needs that might come to light will be in freight, for example. In my view, rail freight is an area where we should be looking to expand and improve the volume of goods that travel by rail. Improving gauge clearances or making all the other slight changes that one has to make to a railway to improve the ability of rail freight to, for example, get through tunnels, may have a knock-on impact on the safety certification. I do not know for sure, but these are the sorts of things that we will need to look at if we are to get more freight on to our railways. Therefore, we feel that, in future, divergence is a possibility. It is by no means a certainty. It would not happen without full consultation with the industry, and it would happen only if it is in the interests of the industry.

Motion agreed.

Committee adjourned at 6.07 pm.