1.By a letter dated 16th September 2020, the Joint Committee on Statutory Instruments requested a memorandum on the following points:
(1). Explain why regulations 5 and 8(2) extend only to Great Britain given that the provisions they amend extend to the whole of the United Kingdom.
(2). Confirm whether the reference in regulation 7(2)(f) to “regulation 18(A1)” should be a reference to “regulation 18A(1A)”.
2.On the first point, regulations 5 and 8(2) should have extended to the whole of the United Kingdom. The Department is grateful to the Committee for raising this issue and apologises for the error. For the reasons set out below the Department do not consider that it will have a material impact, but steps will of course be taken to make appropriate amendments at the first available opportunity.
This regulation amends the Connecting Europe Facility (Revocation) (EU Exit) Regulations 2019 (the “2019 CEF EU Exit Regulations”). As it currently stands, for Northern Ireland, regulation 3(3) would read:
For the purposes of paragraph (2), a person has been awarded grant funding if, before the end of 2020 (whether before or after exit day)—
(a) the person has entered into a grant agreement with the European Commission; or
(b) the following criteria are met—
(i) the European Commission has informed the person of a decision to award grant funding to the person; and
(ii) the Secretary of State considers that the European Commission would have entered into a grant agreement with the person in respect of that funding if the United Kingdom had not withdrawn from the European Union.
4.In the present case whilst the inconsistency of approach between Great Britain and Northern Ireland is regrettable, the Department does not consider that the failure to amend this provision of the 2019 CEF EU Exit Regulations for Northern Ireland will have an impact in practice.
5.Regulation 3 of the 2019 CEF Regulations makes provision for the Secretary of State to make grant payments, subject to certain conditions, to persons awarded grant funding under the EU Connecting Europe Facility in cases where payments under those grants are not made by the EU. The original drafting required that to be eligible for a payment, among other things, the grant should have been awarded by the EU before the end of 2020, whether this was before or after exit day. As amended for Great Britain the words “IP completion date” have been substituted for the reference to “the end of 2020”. However, as the IP completion date is 11 pm on 31st December this year (the end of the Transition Period), the Department considers there is no practical difference between the position for Great Britain and Northern Ireland. In each case, to be eligible for a payment by the Secretary of State, a person would have to have entered into a grant agreement with the EU before the end of 2020. The current EU Connecting Europe Facility also expires at the end of 2020 and as 11pm GMT is equivalent to midnight Central European Time, there would be no possibility of a grant being awarded by the EU between 11pm and midnight GMT.
Regulation 8(2) omits regulation 6(2)(b) of the Railways (Safety, Access, Management and Interoperability) (Miscellaneous Amendments and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/1310) (the “EU Exit Interoperability No 2 Regulations 2019”). Those Regulations in turn amended an earlier set of EU Exit Regulations, the Railways (Interoperability) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/345) (the “EU Exit Interoperability No1 Regulations 2019) which (at regulation 2(27)) had substituted a new regulation 23 into the Railways Interoperability Regulations 2011 (“S.I. 2011/3066) (the “2011 Regulations”).
7.The new regulation 23 inserted into the 2011 Regulations is also amended by regulation 4(5)(a) of the present Regulations. Regulation 4 extends to the whole of the United Kingdom.
8.Regulation 4(5)(a)(i) substitutes the words “drawn up before, on or before or after IP completion day” for the words “drawn up before or after exit day” in the new regulation 23(2)(a) of the 2011 Regulations. As new regulation 23(2)(a) was originally drafted, the intention was to ensure that railway interoperability constituents certified, before EU exit day, as complying with relevant standards on the basis of an EU declaration of conformity or suitability could continue to be placed on the market in the UK after exit day. The purpose of the substantive amendment in regulation 4(5)(a)(i) is therefore to ensure instead that interoperability constituents certified against an EU declaration of conformity or suitability, before IP completion day, can continue to be placed on the market in the UK after that date.
9.In the Northern Ireland version of the 2011 Regulations, however, the existing wording in regulation 23(2)(a), which regulation 4(5)(a)(i) of these Regulations amends, will remain as “drawn up on before or after exit day” [italics added]. This is because of the failure to extend regulation 6(2)(a) of the present Regulations to Northern Ireland as that provision would have removed the word “on” shown in italics above immediately prior to regulation 23(2)(a) of the 2011 Regulations being amended by regulation 4(5)(a)(i) of the present Regulations.
10.Again, the Department apologises for this error. In practice it is considered that it would be unlikely to cause significant confusion and that the amendment made to regulation 23(2)(a) of the 2011 Regulations by regulation 4(5)(a) of these Regulations will still be effective as regards Northern Ireland.
11.The Department also notes that there are additional/repeated words (“before or”) in the substituted text in regulation 4(5)(a)(i) which should also be omitted. Consideration will be given to whether this minor typographical error can be corrected by a correction slip.
12.Regulation 4(5)(c) provides that in the new regulation 23(4) the words “on or after IP Completion Day” are to be substituted for the words “after exit day”. Because of the failure to extend regulation 8(2) to Northern Ireland, the words “on or”, which were inserted before “after exit day” by the EU Exit Interoperability No 2 Regulations 2019 will remain in place. The result will be that the version of the 2011 Regulations that extends to Northern Ireland will now presumably read “on or on or after IP Completion Day”. However, again the Department is of the opinion, that when interpreting the legislation, it will be quite clear that the additional “on or” is a mistake and would not impact on the legal effect.
13.Appropriate amendments to deal with these issues will be made at the earliest possible opportunity in a suitable Rail EU Exit instrument.
14.On the second point, the Department can confirm that the reference in regulation 7(2)(f) to “regulation 18(AI)” should be a reference to “regulation 18A(1A)”. It is hoped to be able to correct this error using a correction slip. It is considered that the reference to a “cross-border service” in the revised text makes it clear that the cross-reference is indeed intended to be to regulation 18A(1A) of the Railways and Other Guided Transport Systems (Safety) Regulations 2006 which are ultimately being amended here. Regulation 18A(1A) makes provision in relation to vehicles used for cross-border services. However, in the event that using a correction slip to rectify this error is not an option, steps will be taken to make the necessary amendment at the earliest possible opportunity in a suitable Rail EU Exit instrument.
Department for Transport
22 September 2020
Published: 2 October 2020