On 24 January 2022, the House of Lords is due to debate the draft Train Driving Licences and Certificates (Amendment) Regulations 2022. The draft regulations were laid before Parliament on 2 December 2021. They must be approved by both Houses before they can come into force. The House of Lords will also debate an amendment to the approval motion. If agreed, this would not block approval of the regulations but would express regret that there will not be mutual recognition of train driving licences outside the limited area of the Channel Tunnel zone.
What would the regulations do?
The regulations would enable train driving licences (TDLs) issued by authorities in the European Economic Area (EEA) to continue to be recognised in the UK half of the Channel Tunnel and in the cross-border area after 31 January 2022.
Train drivers are required to have both a TDL and a complementary certificate to drive mainline trains in Great Britain. A train driver must pass general professional competence, medical and occupational psychological fitness examinations to receive a TDL. The complementary certificate is issued by a driver’s employer and details the type of rolling stock which the driver may drive, and the infrastructure which the driver can drive trains over. These requirements are set out in the Train Driving Licences and Certificates Regulations 2010 (as amended). The 2010 regulations were originally brought in to implement an EU directive that established a common European regime for certifying and licensing train drivers.
The 2010 regulations were amended in 2019 and 2020 to ensure that all European TDLs issued before 31 January 2022 would continue to be recognised in Great Britain until 31 January 2022. They will not be recognised beyond this date. However, if approved, the draft regulations would create an exception to this for the Channel Tunnel and the immediate cross-border area.
The UK is in the process of agreeing a bilateral agreement with France which would allow for the permanent mutual recognition of British and European TDLs in the Channel Tunnel and the cross-border area. This would cover the areas between Calais-Frethun passenger station in France and Ashford International station in the UK for passenger traffic, and between Calais-Frethun freight yard in France and Dollands Moor freight yard in the UK for freight traffic. The regulations would make the changes necessary for the UK to be able to implement the agreement in domestic law.
The regulations would provide for the continued recognition of European TDLs for train drivers operating in the Channel Tunnel zone. They would also allow railway undertakings and infrastructure managers to issue a single complementary certificate to train drivers to operate throughout the entire Channel Tunnel zone. The regulations also contain information-sharing provisions to enable the Office of Rail and Road (ORR) to share information with the French licensing authorities. The Government has said in the explanatory memorandum to the draft regulations that this would give effect to requirements of the proposed bilateral agreement, enabling authorities on both sides of the Channel Tunnel to share information relating to any concerns about the validity of a licence or compliance with the licensing regime.
The Government has said that the bilateral agreement has been agreed, subject to signature, and that it will be subject to the requirements of the Constitutional Reform and Governance Act 2010. This usually requires that a treaty cannot be ratified unless a minister has laid a copy before Parliament and a period of 21 sitting days has elapsed without either House resolving that it should not be ratified. Foreign, Commonwealth and Development Office (FCDO) guidance on treaties says that if domestic legislation is needed to enable the UK to give effect to its obligations under a treaty, the legislation should be in place before the treaty comes into force, so that the two can come into operation at the same time. The FCDO therefore usually insists that any necessary UK legislation is in place before a treaty is ratified or acceded to. The bilateral agreement has not yet been laid before Parliament.
If approved, the regulations would come into force on 31 January 2022, or if they are made on or after 31 January, on the day after they receive ministerial signature and are made. The Government has explained that the possibility of the regulations coming into force at a later date is to provide for a possible scenario in which France has not yet signed the proposed bilateral agreement by 31 January 2022, when the existing transitional recognition of European TDLs in Great Britain ends. The Government states in the explanatory memorandum that it could then defer signature and commencement of the regulations until immediately after the agreement has been signed.
If the regulations are not in force by 31 January 2022, then rail operators in the Channel Tunnel zone would have to ensure that drivers are licensed under both the UK and the EU regimes. British TDLs have not been recognised as valid in the EU, including in the French section of the Channel Tunnel, since 1 January 2021. The Government has stated in the explanatory memorandum that operators have already obtained European TDLs for their drivers to ensure they are able to continue driving their trains through the Channel Tunnel.
What parliamentary scrutiny has there been?
The House of Lords Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments have both considered the draft regulations. Neither committee raised any issues.
The House of Commons discussed the regulations in a delegated legislation committee debate on 18 January 2022. Wendy Morton, Parliamentary Under Secretary of State for Transport, argued that the regulations would “reduce administrative burdens on cross-border operators” and “support the long-term continued smooth operation of cross-border services through the Channel Tunnel”. Both Tanmanjeet Singh Desi, Shadow Minister for Transport, and Alison Thewlis, Scottish National Party spokesperson on the Treasury, asked for an update on the signature of the bilateral agreement and the operational impact of any delay. However, the minister did not provide any further information about proposed timings for signature and ratification of the agreement.
Lord Berkeley (Labour) has tabled an amendment to add the following wording to the end of the motion to approve the regulations:
[…] but that this House regrets that the regulations, while providing interoperability for train drivers between Ashford and Calais, do not extend to full European Union and United Kingdom interoperability in a similar manner to drivers of heavy goods vehicles.
This is a non-fatal amendment, which means that if it were agreed, it would not block the approval of the regulations.
Lord Berkeley’s amendment draws a contrast between the post-Brexit licensing regimes for train drivers and HGV drivers. For train drivers, the regulations would only provide for continued mutual recognition of TDLs within the limited area of the Channel Tunnel zone. The EU stopped recognising British-issued TDLs on 1 January 2021, and European issued TDLs will no longer be valid in Great Britain after 31 January 2022, apart from within the Channel Tunnel zone once the regulations are in force. The Government has confirmed that a cross-border driver holding a European TDL would also need to hold a British TDL to drive beyond the Channel Tunnel zone, for example up to St Pancras International station. Drivers who are driving trains in Great Britain using an EU-issued TDL will need to apply for a British TDL from the ORR before 31 January 2022. Department for Transport guidance states that current holders of EU-issued train driving licences will be considered as new applicants when applying to the ORR for a new licence.
For HGV drivers, UK-issued driving licences can continue to be used to drive in the EU, Iceland, Liechtenstein and Switzerland without the need for an additional international driving permit, providing the licence covers the category of vehicle being driven. Drivers also need a driver certificate of professional competence (CPC) qualification to drive a lorry professionally in the UK and the EEA. Drivers must carry their driver CPC card with them while driving an HGV professionally. Drivers who work for a UK company and have a UK driver CPC card can continue to use the card to drive to or through EU countries for all international journeys that UK companies are allowed to make. However, UK driver CPC cards may not be recognised in EU countries if the driver is working for an EU company. These requirements relate to the licensing of individual HGV drivers, but to carry out an international road haulage business, operators may also need to comply with a range of other requirements, such as licensing their business, registering their vehicles and trailers, and complying with the relevant customs procedures for the goods they are transporting.
- Department for Transport, ‘Rail interoperability and standards’, updated 19 January 2022
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