1.This Brexit-related Bill received its Second Reading on 27 February 2018. Its purpose is to support UK road hauliers in continuing to operate internationally after the United Kingdom leaves the EU.
2.The Bill is wholly skeletal, more of a mission statement than legislation.
3.It would have helped us had the Department for Transport, in addition to providing a delegated powers memorandum,2 produced some illustrative regulations alongside the Bill. As it is, we are in the dark because the devil will be in the regulatory detail.
4.We appreciate that the position remains unclear for a variety of reasons. Nonetheless, the Minister may wish to assist the House in its consideration of the Bill at Committee Stage by providing illustrative examples (however tentative and qualified) of at least some of the regulations to be made under the main delegated powers in the Bill.
5.Meanwhile we draw attention to clauses 1 to 3 of the Bill.
6.The delegated powers memorandum explains that an agreement with the EU following the United Kingdom’s exit may require UK road hauliers to carry permits enabling them to transport goods to, in or through the EU. Clause 1 allows the Secretary of State by regulations to prohibit the use of a UK-registered road vehicle on international journeys without a permit and without all the conditions of the permit being complied with.
7.The Department gives no indication as to what regulations made under clause 1 might include, on the ground that “the terms of international road transport agreements are as yet unknown”. We are told that the provisions put in place under the regulations “if any provisions are needed at all” will reflect the terms of the international agreements. Yet the Department proposes to use the negative procedure in all cases.
8.Given that regulations under clause 1 might prove to be unnecessary, we recommend that the Bill should contain a sunset provision, extendable if necessary, to remove the regulation-making power in clause 1 if it does in fact prove to be unnecessary.3
9.We also recommend that there should be a sifting procedure for regulations under clause 1 - akin to the one we recommended for the European Union (Withdrawal) Bill4 - allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure. We do so because—
(a)the content of any regulations made under clause 1 will depend on future international agreements;
(b)there is no current indication as to what regulations under clause 1 might say or how important they might be, if they are needed at all;
(c)it cannot be known in advance that the negative procedure will always be suitable for regulations made under clause 1;
(d)it might transpire that some regulations made under clause 1 might require the affirmative procedure.
10.We are not seeking to make a sifting mechanism a general feature of our legislative landscape. However, the circumstances of the United Kingdom’s exit from the European Union have given rise to unique legislative challenges, not least because the withdrawal agreement is being negotiated in tandem with the passage of several significant pieces of primary legislation, including the present Bill. Given the skeletal nature of this Bill and the absence of illustrative regulations, a sifting mechanism commends itself as a proportionate and sensible response to the present uncertainty. We would envisage the sifting function being undertaken by the same committees charged with sifting proposed negative instruments laid under the European Union (Withdrawal) Bill.
11.Clause 2 enables the Secretary of State, by regulations, to make provision with regard to the following:
12.The delegated powers memorandum says:
“Until the arrangements regarding the continued access of goods vehicles to Member States are clear, provisions need to be made that cater for all options from the allocation of a small number of permits on the basis of strict criteria to the allocation of a large number of permits on a first come, first served basis.
How the precise procedures will operate and which criteria will apply … may vary depending on the terms of the international road transport agreements concluded with the EU and other countries.
… it is not yet clear what sort of a regime or regimes will need to be introduced and, in the interest of ensuring that the provisions cater for agreed scenarios and are not too wide, it is necessary to legislate by way of secondary legislation once negotiations have been concluded and the nature of any permit scheme that needs to be introduced is clear.”
13.Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply to such regulations. For the reasons given at paragraph 9 above, we recommend that there should be a sifting procedure for regulations under clause 2 allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure.
14.Clause 3 enables regulations to allow the Secretary of State to grant a temporary exemption from the prohibition imposed on operators of goods vehicles registered in the UK—by regulations made under clause 1(1)—in order for an emergency or some other special need to be dealt with. The delegated powers memorandum explains that exemptions would be required as a matter of urgency and are likely to be technical. The memorandum also says that regulations under clause 3 might not be needed at all.
15.Given that regulations under clause 3 might not be needed, we recommend that the Bill should contain a sunset provision, extendable if necessary, to remove the regulation-making power in clause 3 if it does in fact prove to be unnecessary.
1 Save for the commencement provision in clause 23, which is subject to no parliamentary procedure at all.
2 Department for Transport, Haulage Permits and Trailer Registration Bill [HL] Delegated Powers Memorandum
3 Clauses 7(8), 8(4) and 9(4) of the European Union (Withdrawal) Bill all contain sunset provision.
4 At paragraph 58 of our 12th Report, Session 2017–19 (HL Paper 73), we said: “A recommendation from a sifting committee of either House to upgrade the negative procedure to the affirmative procedure should be determinative save where the recommendation is rejected by a resolution of that House.”