I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, for this short debate on the SI before us. A number of issues have been raised and I look forward to trying to answer as many questions as possible. As ever, I will write if I miss out anything.
As I would expect from a leading Liberal Democrat, we heard the usual question: “What happens if we don’t leave the EU?” It is quite right for the noble Baroness to pose that question. That is obviously not government policy, so not a huge amount of work has gone into it—but the noble Baroness will know that, in the event that the UK does not leave the EU, all the work that we in government are doing at the moment on no-deal preparations, including these SIs, could be revoked. The SIs would simply fall away.
The noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, asked about the recast of our safety directive. That point is very important and is in flow at the moment; we will certainly need to consider it at some point next year. The recast Directive (EU) 2016/798 on rail safety repeals and replaces the previous rail safety directive, and forms the basis of the regulations that we currently have in place. The key aims of the new directive are: to streamline the application process for rail vehicle authorisations and safety certificates through a single EU one-stop shop; to achieve consistency of regulatory approach between national safety authorities; to achieve much clearer alignment with the European Union Agency for Railways; and to progressively eliminate technical and operational differences between member states’ railways, including through the gradual elimination of national safety rules.
As noble Lords mentioned, the UK has applied for an extension to be in place until 16 June 2020, which has been agreed. Regarding the terms of our departure, if we are in an implementation period at that stage, the recast safety directive will be brought into our legislative framework. I suspect that, if we are still in our positions, we will be back in place to debate it at that time. If there is no deal, the Government of the day can look at the changes that have happened in Europe and decide whether to bring those changes into UK legislation. If the directive is implemented in whole or in part, a consultation with industry will take place, as with any new legislation. Officials have already done much of the work to ensure that the directive could be implemented if it is necessary and desirable.
Moving on to the ORR and its ability to charge a fee, the instrument makes fixes to EU tertiary legislation that allows the ORR to charge a fee. It was clear that
the ORR wants to retain that fee-charging ability should it need to in future; essentially, we are retaining the status quo. However, the ORR has advised that it does not currently charge a fee in its role in determining applications for access to the rail network but that it wishes to retain the ability to charge a fee should it need to—which is the status quo. However, if a fee were to be charged in future, it would be subject to consultation with the industry.
The noble Baroness, Lady Randerson, also mentioned the “made affirmative” procedure and asked whether it was still appropriate for this instrument to be brought through your Lordships’ House under that procedure. I suspect that it is. The debate taking place today is happening prior to the date on which a no-deal exit would otherwise have happened. Therefore, the significant difference between the “made affirmative” procedure and the normal affirmative procedure is not substantial in this case. Had we done it the other way, we may well have had the debate on the same day—but it was absolutely clear to us that we needed to make sure, had this debate not been able to be scheduled, for example, that certainty would be available to the industry. That is why we used the “made affirmative” procedure. We could have gone back and withdrawn the SI, then tabled it again under the new procedure—but, in practical terms, I am not sure that it would have made any real difference.
The noble Lord, Lord Rosser, brought up the subject of safety certificates in future and asked whether there would be divergence. We may want to diverge in future; one of the benefits of Brexit is being able to take control of the sorts of regulatory systems that we might find beneficial. Safety has always been a priority for this Government and for Governments before us, and it may be that, in future, we diverge from the EU in certain areas with regard to the safety framework. We are definitely not going to lower our safety standards, but we might do things differently. But things may change and, in future, EU operators wishing to operate in the UK will have to get a safety certificate from the UK, and that will be under the new regime. Obviously, this would have to go through your Lordships’ House and there are many steps to be taken in that process.
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If we look at UK companies which operate in the EU, at the moment Eurostar has services to France and Belgium. It has set up a French subsidiary, so it has both its UK licence and its EU licence from its French subsidiary which enables it to continue to operate services.
The noble Lord, Lord Rosser, asked what industry will have to do to align itself. I suspect that the wording in the Explanatory Memorandum is possibly a little overblown in this area. In reality, at the moment very little alignment needs to happen because we are fully aligned. If the industry needs to do anything—and we are talking about one operator—it is to familiarise itself with the process of the new application system with the ORR because companies will have used a different member state authority to get their original Part A safety certificate. They will have to get used to dealing with the ORR as the new regulator for their safety certificate.
Turning to Northern Ireland, noble Lords will know that rail is a transferred matter. In the absence of a functioning Northern Ireland Executive, policy in Northern Ireland cannot be changed. It has been agreed with the Department for Infrastructure that we will take forward legislation on its behalf to preserve the status quo. At present, safety certificates in Northern Ireland are issued by the Department for Infrastructure and it will continue to do so. They will remain valid—there is no two-year cut-off for services within Northern Ireland. Decisions on future legislation will be a matter for a future Northern Ireland Executive. There is some divergence between GB and NI in this instrument, which is why parts of it are applicable to certain areas. The intention is to introduce a two-year time limit on the recognition of Part A safety certificates as a specific policy choice, but it cannot be imposed on Northern Ireland in the absence of an Executive.
The noble Lord, Lord Rosser, mentioned franchise bidders. This is an important issue because there are many overseas companies involved in our railways and we welcome their involvement. They must have a safety certificate in place prior to operating their services. Operating companies have a UK base so they would make the application.
I hope that I have answered all the questions, unless the noble Lord, Lord Rosser, is going to challenge me on that one.