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Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) (EU Exit) Regulations 2020

Volume 806: debated on Tuesday 29 September 2020

Motion to Approve

Moved by

My Lords, this draft instrument will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed at the end of the transition period. As noble Lords will be aware, we have conducted intensive work to ensure that there continues to be a well-functioning legislative and regulatory regime at the end of the transition period.

This draft instrument amends the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009, as amended, which I will call the “2009 regulations”. These regulations provide a framework for ensuring the safe transport of dangerous goods in Great Britain.

The 2009 regulations give effect to two EU directives concerning the carriage of dangerous goods. The Dangerous Goods Directive 2008 gives legal effect to international agreements on the carriage of dangerous goods and establishes a common safety regime across all EU member states. The Transportable Pressure Equipment Directive 2010 sets out procedures to be followed and safety requirements for transportable pressure equipment.

These amendments ensure that we continue to work to the same requirements and standards in the carriage of dangerous goods as before the UK’s exit from the EU and provide legal certainty for the industry. This is achieved by amending references to the directives in the 2009 regulations, as well as requirements that are predicated on the UK being a member state of the EU.

I will give a tiny bit of background. The UK has signed up to various international agreements on the transport of dangerous goods. It is a signatory to the European agreement concerning the international carriage of dangerous goods by road. The agreement, helpfully known as ADR, was made under the auspices of the United Nations Economic Commission for Europe, UNECE, and has been implemented in the UK since 1968. The UK is committed to the ongoing implementation of the requirements of this agreement, which predates our EU membership. ADR does not automatically have legal force and is now implemented within the EU by the Dangerous Goods Directive. The EU has also introduced a directive on transportable pressure equipment, also applied domestically through the 2009 regulations.

Turning to rail, the UK has been a signatory to the convention concerning international carriage by rail—COTIF—and predecessor conventions since 1980. The regulation concerning the international carriage of dangerous goods by rail, RID, forms appendix C to COTIF. As with ADR, the Dangerous Goods Directive implements RID in the EU, including for national transport.

As mentioned previously, this draft instrument will be made under the powers conferred by the European Union (Withdrawal) Act 2018. It is subject to the affirmative procedure because it transfers an EU legislative function to a public authority in Great Britain, in that it gives the Secretary of State power to derogate from the standards set in three international agreements concerning the carriage of dangerous goods by road, rail, and, to a lesser extent, inland waterways, through the issuing of domestic exemptions to these agreements.

At the end of the transition period, the dangerous goods and transportable pressure equipment directives are retained in their entirety in UK law. This draft instrument makes the changes necessary so that the requirements and procedures within those directives continue to function correctly. This is essential to ensure the regulatory regime in place in Great Britain after the transition period continues to function. This instrument updates references and definitions used in the regulations to reflect the UK’s exit from the EU.

At present, the power to issue derogations from ADR and RID, and in respect of inland waterways, rests with the European Commission. This draft instrument gives the Secretary of State power to issue domestic derogations where safety is not compromised. The instrument also introduces a new UK conformity mark—the UK TPE—so that transportable pressure equipment, or TPE, may continue to be manufactured and inspected in Great Britain after the transition period. This instrument places obligations on manufacturers, importers, distributors and owners of this UK TPE, and it mirrors the requirements of the Transportable Pressure Equipment Directive.

This instrument introduces a process by which the competent authority in Great Britain—in practice, the Secretary of State—may appoint bodies to undertake inspections, examinations, testing and approval of transportable pressure equipment. Under the Transportable Pressure Equipment Directive, the European Commission would have been notified of, and could have vetoed, such an appointment before a UK inspection body was awarded “notified body” status. For notified bodies established in Great Britain before the end of the transition period, this instrument provides for their appointment by the GB competent authority without charging a fee.

As the carriage of dangerous goods is devolved to Northern Ireland, this instrument will also ensure that transportable pressure equipment assessed in Northern Ireland in accordance with the transportable pressure equipment directive continues to be recognised in Great Britain, through acceptance of the UK(NI) mark. This implements a requirement of the Northern Ireland protocol relating to unfettered access of goods between Northern Ireland and Great Britain.

This instrument is relatively simple. It serves to ensure the continued effective regulation of the carriage of dangerous goods in Great Britain to the same standards as before the UK’s departure from the EU. It maintains the existing regulatory framework but includes essential amendments to ensure we have a functioning statute book. I beg to move.

My Lords, I welcome these regulations as an essential part of our preparation for the end of the transition period into 2021. The transport by road, rail or inland waterways of dangerous materials, such as hazardous chemicals, fuel, gases, explosives and pressure equipment, through or near populated areas must be as safe as possible, both for the public and those working with these materials. This is certainly not an area in which to take risks. For decades, we have ensured that international standards, and then even stronger EU standards were introduced to improve protection and enhance environmental protections. I am delighted that it has been confirmed that these regulations will maintain the pi marking system to ensure that current standards are met, and that the EU directives implementing our agreements with the UN prior to joining the EU will also be maintained, but who will oversee this in future?

I am delighted to see that the Northern Ireland protocol is being upheld and, for example, that the TPE in Northern Ireland will continue to comply with EU directives and recognise Northern Ireland inspection. My noble friend said that the Secretary of State can approve derogations

“where safety is not compromised”.

Who will judge this? What expertise and experience will the Secretary of State call on to exercise this discretion?

I understand that the optional new rho standard will potentially be used for our own GB equipment, manufactured here or imported, and will have conformity assessed by appointed inspection bodies. Can my noble friend give us a little more information on who will staff these bodies, what they will be, who will fund them and what safety checks or early warning systems they will have access to? Are we considering joining EU bodies that have already been established and continuing to benefit from the much broader reach that those 27 other countries can attain relative to the UK itself?

I welcome my noble friend’s introduction of this SI and congratulate her on her clear explanations and her words of reassurance that this merely maintains what we have now, but if she could answer the questions I have raised, I would be most grateful.

My Lords, these regulations relate to the transport of dangerous goods by road, rail and inland waterway. They include amendments to legislation relating to the inspection of transportable pressure equipment. This is another in the long line of changes to our statute book required because of Brexit. It is a good example of the effectiveness of the EU and how we have benefited from the highest standards set by it over the years.

Safe transport of dangerous goods is something we take for granted, specifically because it has been done so well for so long. As always, leaving the EU has complicated matters. As this is about international transport of goods, we have to continue to use the EU pi marking if we want to continue to trade in this important sector. The continued use of the pi marking will be essential in Northern Ireland, but because of the Northern Ireland protocol, there will also be a UK(NI) marking alongside the pi marking, to enable goods to enter Great Britain’s market. This is one additional complexity. In any event, there is to be an additional UK rho marking. Is that just someone’s clever idea, to give us a feeling that we are free of the dreadful EU, or is it essential? Again, I ask the Minister to explain: is this a government choice, or is it essential?

Then there is the difference between notified bodies and appointed bodies. I read this part several times very carefully, and I have to confess that I am still not clear, so will the Minister please elucidate for me? I should like to know more about these bodies. May we have some examples? Specifically, how are they appointed and who sits on them? How free are they from government interference? The noble Baroness, Lady Altmann, has made her concerns clear on the issue of safety and high standards, and this is what is behind my question. The Government do not exactly have a shining reputation from recent months for filling public appointments with the correct level of expertise. We are back to the situation which predated the Nolan rules, in some cases. I cannot think of a sector where real expertise, rather than political linkages, is more important, so I look forward to the Minister’s explanation of exactly who these bodies are.

My other concern is the consultation, which took place two years ago. The list of bodies quoted as consultees does not include any specific reference to the nuclear industry. I hope the Minister can reassure me. I hope she can explain clearly that the SI refers to the nuclear industry—I assume it does—and explain which of the bodies consulted cover the nuclear industry. How were the views of that industry taken into account? For example, nuclear waste from Hinkley Point in Somerset travels regularly by night train to Sizewell. The amount of nuclear waste will increase when Hinkley C is operative, and there will be real challenges in rail capacity and so on, so the issue of safety there is important.

Finally, what if there is no deal? Will this legislation be affected? Will it be affected by the handover process from the current system to any new system?

My Lords, I thank the Minister for her explanation of the content and purpose of this draft statutory instrument covering the transport of dangerous goods by road and rail, which in transferring an EU legislative function at the end of the transition period, as she said, also gives the Secretary of State power to derogate from the standards set in three international agreements through issuing exemptions to those agreements. As the Minister said, these international agreements relate to the carriage of dangerous goods by road, by rail and by inland waterways.

This SI, through the introduction of an optional UK-only compliance mark, also enables bodies inspecting transportable pressure equipment in Great Britain to continue to do so for such equipment on the non-EU market. Why have the Government apparently concluded that the new UK-only compliance mark should be optional?

The SI provides for Great Britain to continue to work to the same standards and requirements in the carriage of dangerous goods at the end of the transition period as applied while we were a member of the EU and as still apply today. Can the Government confirm that this also applies to the petroleum driver passport?

Both noble Baronesses, Lady Altmann and Lady Randerson, asked who will ensure that the standards and requirements will be adhered to following the end of the transition period and how. I too await with interest the answer to the questions they raised.

Do the Government have any plans to exercise the powers in these regulations to create domestic exemptions or changes to the current standards and requirements of the present regulatory framework, and if so, in which areas in particular? In addition, have the Government been approached by any parties involved in the carriage of dangerous goods in this country to introduce exemptions or changes to the current standards and requirements of the present regulatory framework, and if so, in what areas in particular?

As has been said, the carriage of dangerous goods is devolved to Northern Ireland. Will Northern Ireland also be able to take powers to create its own domestic exemptions to the current standards and requirements? If so, do the Government know whether there are likely to be any such exemptions or changes of that nature?

Finally, we heard recently from the Government that when the transition period ends we could find up to 7,000 lorries being held up at channel crossing points. What would be the position if vehicles carrying dangerous goods were among the possible 7,000 held up? Could such a delay have any effect on their being able to adhere to all the current standards and requirements of the present regulatory framework, in respect of the carriage of such goods, which will still be in force immediately following the end of the transition period but which will then be a matter solely within our jurisdiction?

My Lords, I thank all noble Lords for their consideration of these draft regulations and their input into this short debate. I will say at the outset that this is one of those statutory instruments in which nothing much changes. I reassure my noble friend Lady Altmann that there is no new system per se which will come in and need to be set up and resourced, et cetera. We will be very reliant, as we are now, on an existing and well-functioning system.

My noble friend quite rightly asked who will oversee the carriage of dangerous goods, so I will take her through that in a little more detail. It is the same system as now. Enforcement activity is carried out in line with the enforcement policy of the Health and Safety Executive, as one would imagine. Both the police and the DVSA can undertake roadside inspections and issue prohibition notices under Section 22 of the Health and Safety at Work etc. Act 1974 where there is non-compliance with any of the regulations. Details of these prohibition notices are recorded and published on the HSE website, which gives the appropriate level of visibility to see how the system is responding. Where justified, police officers may also initiate court proceedings. The Office of Rail and Road enforces the rules in relation to the carriage of dangerous goods by rail. We do not expect any change in the capacity for enforcement, so it will require no new resources.

On the point raised by the noble Baroness, Lady Randerson, about the inspection bodies, there are already 33 inspection bodies appointed by the competent authority, which was previously the EU and will now change over to the Secretary of State. We do not expect that these inspection bodies will change particularly; they are well-established and have been around for a long time, and relate to every element of the carriage of dangerous goods, as one would expect. This SI simply allows the Secretary of State to appoint the same bodies to fulfil the same functions thereafter.

However, it is worth going into a bit more detail about consultations with the industry—the noble Baroness, Lady Randerson, mentioned the nuclear industry and whether it had been consulted. This SI has been very widely consulted on. We actively engaged with over 300 stakeholders, including the Office of Rail and Road, and no concerns were raised. In 2018, we issued a public consultation on this SI and received just seven responses, none of which raised any concerns but some of which guided our drafting, as noble Lords would expect. Because that was done back in 2018, we conducted a second informal consultation in 2019 which targeted specific stakeholders, primarily around transportable pressure equipment and the conformity assessment bodies, on the introduction of the non-mandatory UK mark. Again, there were few responses—just four—and they did not identify any concerns with our approach to the introduction of this mark and guided our thinking as to how it would be implemented.

The noble Lord, Lord Rosser, mentioned the petroleum driver passport. This will not be impacted at all by the regulations. The PDP is a UK industry scheme which was established with backing from DECC, now BEIS. It was set up and is managed by the industry—the Downstream Oil Distribution Forum. DfT’s role with the PDP is to facilitate the contract for the delivery of the scheme between the DODF and the Scottish Qualifications Authority, which manages the implementation of the scheme. There will be no change: the DODF will retain the ownership and management of the scheme which is not mandated by law. We expect that to continue.

It is worth spending a little time on Northern Ireland and on possible exemptions that may arise. As the transport of dangerous goods is a devolved issue, Northern Ireland has its own legislation concerning this, but it mirrors the GB regulations. At the end of the transition period, Northern Ireland will continue to apply the requirements of one of the directives relating to the transport of dangerous goods—the transportable pressure equipment directive. This means that transportable pressure equipment, or TPE, conformity assessed in Northern Ireland will need to bear the “UK(NI)” marking in addition to the “pi marking” required by that directive. This draft SI introduces a provision to recognise such marked transportable pressure equipment on the market in Great Britain. Without this provision, it would not be possible to place such equipment on the market in Great Britain, and therefore it is required to permit unfettered access of such equipment between Northern Ireland and Great Britain.

The noble Lord, Lord Rosser, also asked about the different marks. In Great Britain, at the end of the transition period TPE already on the market with a pi mark will continue to be recognised, and any new TPE entering the market in Great Britain may either be pi marked or rho marked. To that extent, the rho marking is non-mandatory. Where a new product is pi marked, GB inspection bodies will not be able to perform conformity assessments, as they have to be undertaken by EU notified bodies. Northern Ireland is in the process of making equivalent regulations, which will mirror what is under discussion today and which are making their way through its legislative system.

On divergence and exemptions—an important topic—the Government are not actively looking to diverge from, or to create new domestic exemptions from, the present regulations on the carriage of dangerous goods. Of course we will continue to work both with EU partners and internationally as regulations may be developed, but these tend to be reviewed every two years, and we are not looking actively to diverge from them at all. In considering any such exemptions or divergence from the present regulations, safety of course will always remain a priority. However, it is important that our domestic legislation provides flexibility, which is where we come to the Secretary of State being able to grant exemptions as and when they become necessary, although safety will of course be top of mind. At present, about 20 exemptions are being used by industry. They all expire on 30 June 2021 and therefore may need to be extended, if that extension is still appropriate.

It may help if I give a brief example of what a derogation might look like. Road derogation 17 is a partial exemption because complying with the requirements would be impractical. A health care worker does not need to comply with the ADR requirements if, for example, they carry a 2 kilogram fire extinguisher when carrying a small amount of clinical waste. I think we can all agree that that makes complete and utter sense, and it is the sort of thing for which derogations are used. A second example is where a very small amount of explosive article is being transported. Usually you would not carry the detonating fuzes alongside that explosive article, but if there are very small quantities of the explosive article, it is of course appropriate, because the safety risk is fairly negligible. A note to Hansard may be of interest to noble Lords: the correct spelling is “fuze”, as that is its proper shipping name. I did not know that.

I hope that I have answered the questions today. The noble Lord, Lord Rosser, at the end of his remarks, asked whether hauliers carrying dangerous goods will be delayed as they arrive at Kent. As long as hauliers and consignors have all the correct documentation required, not only those for dangerous goods purposes but those that are required for all hauliers to get a Kent access permit, we do not envisage that there will be a problem.

This instrument makes very minor changes to the retained EU legislation to ensure that appropriate national arrangements are in place to oversee the safe carriage of dangerous goods. I commend it to the House.

Motion agreed.

Sitting suspended.