Instruments of interest
Draft Conservation (Natural Habitats, etc.) (Amendment) (Northern Ireland) (EU Exit) Regulations 2019
Draft Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019
24.These two sets of draft Regulations propose amendments to UK domestic legislation which transposes the EU’s Habitats and Wild Birds Directives, to ensure that the legislation can operate effectively after the UK’s withdrawal from the EU. The Department for Environment, Food and Rural Affairs (Defra) explains that no changes to policy are proposed and that the instruments seek to ensure that habitat and species protection and standards as set out under the EU Directives are implemented in the same or equivalent way in the UK after exit. The Secondary Legislation Scrutiny Committee (Sub-Committee B) cleared a previous set of the draft Regulations from scrutiny8 which Defra later withdrew in response to concerns by the Royal Society for the Protection of Birds (RSPB) about the level of protection for Special Protection Areas (SPAs).9 According to Defra, the draft Regulations have now been amended to provide “absolute legal clarity” that the management objectives of the new national site network to protect wild bird species and their SPAs will remain equivalent to those in the Wild Birds Directive. We have also received a submission from Green Alliance on behalf of Greener UK and Wildlife and Countryside Link which raises concerns about the draft Regulations, including in relation to reporting requirements and the requirements for expert scientific advice. We have obtained a response from Defra to Green Alliance’s submission, which also provides further information on the changes the Department has made to the earlier instruments. We are publishing the submission and the response on our website.10
Draft Licensing of Operators and International Road Haulage (Amendment etc.) (EU Exit) Regulations 2019
25.EU Regulations11 set out a framework for the licensing of road haulage and public transport operators. Operators from EU Member States can operate in other Member States under a ‘Community licence’ issued by the Member State in which the haulier is established. This instrument provides that the UK will continue unilaterally to accept EU27 Community Licences and offer their hauliers cabotage rights. However, after exit day, UK authorities will not be able to issue Community Licences, as the UK will no longer be a Member State. Instead, the relevant UK authorities (the Traffic Commissioners and the Northern Ireland Department for Infrastructure)12 will issue an equivalent document referred to as a “UK licence for the Community.” In the Explanatory Memorandum to these draft Regulations, the Department for Transport (DfT) explains that this is “on the expectation that reciprocal arrangements between the UK and the EU are able to continue on the same terms as exist before the UK exists the EU.” The European Commission (“the Commission”) has published a draft proposal13 to offer continued, but temporary, access for UK hauliers to EU markets, which the UK is currently discussing with the Commission and Member States. DfT told us:
“although the published document currently offers to and from journeys only, in discussions the proposal has been expanded to include limited cabotage and cross trade for haulage and passenger transport movements (that is, buses and coaches). Those discussions give us firm confidence that the provisions of the current SI will be reciprocated, at least for the nine months for which the Commission’s proposal would be in force.”
26.Should an agreement with the EU not be reached, a UK haulier could not move around in the EU or carry out cabotage operations. UK Ministers will, however, have the ability to suspend EU cabotage operations in the UK via an administrative order. This would not be subject to Parliamentary scrutiny, as it would be an urgent and temporary measure in the first instance. If it were later deemed necessary to extend this beyond the maximum period of 12 months permitted under an administrative order, the Secretary of State would make provision for this by way of statutory instrument subject to the affirmative resolution procedure.
Draft Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019
27.Existing Regulations14 set out the rules for the licensing of passenger and freight train operators in Great Britain (GB). The Office of Rail and Road (ORR) issues “European licences”15 enabling licence holders to provide train services in any European Economic Area (EEA) Member State. In future, any licences issued by the ORR will be known as a “railways undertaking licence.” After exit day, operators that hold licences issued by the ORR and operate in the UK, will not need to take any action and these licences will continue to be valid in GB indefinitely. Operators that provide train services in GB and hold a licence issued by an EEA Member State will continue to have their licences recognised for two years after exit day. At the end of that two-year period, any affected operators will require a licence issued by the ORR to continue to operate legally in GB.16 However, after exit day, ORR-issued licences will no longer be valid in EEA Member States. Operators with such licences intending to operate in an EEA Member State after exit day will have to apply for a licence from a licensing authority in an EEA Member State. The Department for Transport (DfT) explained that:
“ … licensing and certification arrangements for cross-border operators, including Eurostar, would be subject to any bilateral arrangements that the UK negotiates with individual EU countries. On the basis of the productive discussions with relevant member states to date, we remain confident about appropriate arrangements being in place so that these mutually-beneficial cross border services continue to effectively operate.
As part of sensible contingency planning, the Government is also engaging closely with Eurostar to support their preparations to ensure they hold valid EU licences and certificates to continue operating in the EU in the event of no deal (additional to UK issued licences and certificates). These preparations will help secure smooth operation of services in all scenarios.”
8 Secondary Legislation Scrutiny Committee (Sub-Committee B), 11th Report, Session 2017–19 (HL Paper 261).
9 SPAs are strictly protected sites under the EU’s Wild Birds Directive, designated for rare and vulnerable birds and for regularly occurring migratory species.
10 Secondary Legislation Scrutiny Committee (Sub-Committee A) Publications page: https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee-sub-committee-a/publications/.
12 DfT has confirmed that “the requirement on the Traffic Commissioners and the NI Department to issue Licences for the Community directly replaces their current duty to issue Community Licences. Therefore, no additional resources are needed to deal with this, and the one-off adjustments to licence formats etc required on exit day are minor and well in hand.”
13 Proposal for a Regulation of the European Parliament and of the Council on common rules ensuring basic road freight connectivity with regard to the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the Union COM(2018) 295.
14 Railway (Licensing of Railway Undertakings) Regulations 2005 (SI 2005/3050) (“2005 Regulations”).
15 Providing the ORR is satisfied that applicants meet certain conditions regarding their professional competence, financial fitness and insurance cover.
16 The Explanatory Memorandum states that “there is currently only one such operator, Europorte Channel SAS, a freight operator.”