Proposed Negative Statutory Instruments under the European Union (Withdrawal) Act 2018
Instruments recommended for upgrade to the affirmative resolution procedure
Animal Health, Plant Health, Seeds and Food (Amendment) (Northern Ireland) (EU Exit) Regulations 2019
Date laid: 21 February 2019
Sifting period ends: 12 March 2019
1.This proposed negative instrument seeks to ensure that Northern Ireland EU-derived legislation on animal health, plant health, the marketing of seed and propagating material and seed potatoes and beef, and veal labelling can operate effectively after the UK’s withdrawal from the EU. The Sub-Committee notes the statement of the Department of Agriculture, Environment and Rural Affairs in Northern Ireland that the proposed changes are minor and of a technical nature. However, one proposal in the instrument appears to be unusual: Part 6 of the instrument proposes amendments to the Plant Health (Amendment) (Northern Ireland) (EU Exit) Regulations 2019. This is a draft affirmative instrument that has not yet been laid before Parliament and the Department has not provided Parliament with a draft of the instrument to assist and inform its scrutiny. The Department has told the Sub-Committee that this has arisen as a result of delays in getting cross-Government clearance of the draft affirmative instrument.
2.The amendments are extensive. Without a copy of the instrument that is to be amended, it is not possible to assess properly whether the proposed changes are only minor and technical, or whether they are more substantial and would require the affirmative procedure. Given this uncertainty, the Sub-Committee considers that the House may expect an opportunity to debate the proposals and we therefore recommend that this instrument should be subject to the affirmative resolution procedure.
Rail Safety (Amendment etc.) (EU Exit) Regulations 2019
Date laid: 18 February 2019
Sifting period ends: 6 March 2019
3.This proposed negative instrument, laid by the Department for Transport (DfT), is intended to allow the status quo in rail safety to continue in the event of ‘no deal’ with the EU. Safety certificates are issued in two parts, Part A and Part B. The Part A certificate is proof that an operator has general safety arrangements in place to run trains. Part A certificates are issued by national safety authorities (the Office of Rail and Road (ORR) in Great Britain) and they are reciprocal across the EU. An operator wishing to run trains must obtain a Part B certificate from the national safety authority of the country in which they wish to operate, in order to demonstrate their ability to run trains safely on a specific piece of infrastructure, such as a train route. This instrument allows for indefinite recognition of EU safety certificates (Part A and Part B). However, DfT stated that it intends to introduce a maximum two-year limit on recognition of EU Part A safety certificates from exit day in a subsequent instrument to be introduced after exit. ORR-issued Part B safety certificates will be valid until they expire and will not be subject to a time-limited period. The European Commission has indicated that, in the event of ‘no deal’, operator licences issued by the ORR to operators currently operating in the EU would not remain valid in the EU after EU exit. DfT explains that “There are four operators holding UK-issued certificates that provide cross-border services between the UK and the EU (Eurostar, GB Rail Freight, DB Cargo and Northern Ireland Railways). The Government is actively engaging with relevant EU Member States, to secure bilateral arrangements in respect of these cross-border services.” Given the potential impact on cross-border operations, the House may wish to debate this instrument. As such, we recommend that this instrument should be subject to the affirmative resolution procedure.
Railways (Amendment) (EU Exit) Regulations (Northern Ireland) 2019
Date laid: 18 February 2019
Sifting period ends: 6 March 2019
4.This proposed negative instrument, laid by the Department for Transport, aims to preserve the status quo for the rail legislative framework for rail operations in Northern Ireland (NI). After exit day, the Office of Rail and Road (ORR), as the independent regulator for rail safety in Great Britain (GB), will continue to issue ORR-only “train driving licences”, and the Department for Infrastructure in Northern Ireland (DfI NI) will issue “Northern Ireland train driving licences.” The approach in GB1 is to recognise European train driving licences issued before exit day for up to two years after exit day.
5.However, this proposed negative instrument will recognise European train driving licences (and ORR licences) indefinitely in NI. The Explanatory Memorandum explains that “this approach to recognition of documents reflects the particular importance of cooperation with the Republic of Ireland as regards cross-border railway services.”
6.DfI NI explained that the reason for the policy divergence between GB and NI is “because the decision to introduce a sunset clause was recently taken by GB Ministers and applied to their legislation. Within NI, any decision to replicate that position in the devolved area would be a policy change and, in the current absence of Ministers here, not within our powers to deliver.” The Committee considers that the House may wish to have the opportunity to debate this instrument and recommends that this instrument be upgraded to the affirmative resolution procedure.
Railways (Safety Management) (Amendment etc.) (EU Exit) Regulations (Northern Ireland) 2019
Date laid: 18 February 2019
Sifting period ends: 6 March 2019
7.This proposed negative instrument is intended to allow the status quo in rail safety to continue in Northern Ireland (NI) after exit day. Safety certificates are issued in two parts, Part A and Part B. Part A certificates relate to compliance with safety requirements generally. Part B certificates relate to requirements for particular infrastructure. Whilst operators may hold one Part A certificate, cross-border services will hold more than one Part B certificate. For example, Northern Ireland Railways hold a Part A certificate covering compliance with safety requirements for the totality of their rail operations, a Part B relating to their operations on NI infrastructure and a further Part B issued by the Commission for Rail Regulation (CRR) in the Republic of Ireland, for their operations in that jurisdiction.
8.After exit, EU Part A and Part B safety certificates will be recognised indefinitely in NI. However, the EU will not reciprocate recognition of UK certification. The Department for Infrastructure Northern Ireland has confirmed that:
“Contingency arrangements have been agreed between NI and the ROI [the Republic of Ireland] whereby applications have been made to the CRR for individual Train driver Licences to be issued to each Train Driver employed by NIR [Northern Ireland Railways] who currently operates cross –border services. These licences will become active immediately on the UK leaving the EU. Equally, NIR have provided evidence of compliance supporting their recently granted Part A Certification to Iarnrod Eireann, the ROI train Operator, who will use this information to amend their Part A Certificate issued by the CRR to cover the operations of NIR in the ROI. These temporary arrangements will safeguard the continuing operation of the cross-border services pending agreement of bilaterals.”
9.Given the potential impact on cross-border operations, the House may wish to have the opportunity to debate this instrument. As such, we recommend that this instrument should be subject to the affirmative resolution procedure.
Proposed Negative Statutory Instruments about which no recommendation to upgrade is made
- Railways (Access, Management and Licensing of Railways Undertakings) (Amendments etc.) (EU Exit) Regulations 2019