The House of Lords has the task of forensically examining all aspects of the Government’s plans and preparations for the end of the Brexit transition period – 23:00 GMT on 31 December 2020 – now just 15 weeks away. They will re-visit the subject on Monday 21 September 2020.
Their work to date has assumed – as set out in the formal response in July to their previous report from Chris Grayling, then Secretary of State for Transport – that there will be a “smooth and orderly withdrawal” from the EU, including agreement on road, rail and maritime matters.
Their scope was “surface transport issues – primarily in the context of a negotiated Brexit” – but they also examined ‘no-deal’ preparations on both sides of the Channel.
They reported that some of the contingency options to maintain connectivity in a no-deal scenario – or in a negotiated Brexit that did not include comprehensive transport arrangements – were already established and “could be relied upon over the long term” (for example those in relation to some international bus travel). Other contingencies took the form of “temporary legislative measures designed to avoid a ‘cliff edge’”. Examples of the latter included measures allowing temporary market access for hauliers.
The report highlighted routes by which both types of arrangements could be improved, whether in the context of a negotiated or no-deal end to Brexit transition.
Report in summary
The report included 43 detailed conclusions and recommendations spanning a variety of issues relating to surface transport. These included issues not only affecting the road, rail and maritime sectors, but also those relating to the specific situation on the island of Ireland and certain “cross-modal” matters such as communication with businesses, passenger rights and infrastructure investment.
In respect of rail and maritime matters, the committee noted the then Government’s stated intention to pursue bilateral agreements on UK-EU rail links, namely the connection between Kent and northern France and the Belfast-Dublin Enterprise Line. It also noted that maritime transport is largely underpinned by international law, meaning that after Brexit UK and EU maritime operators would, in most respects, be able to access each other’s ports as had been the case during the UK’s membership of the bloc.
However, on road transport the committee said that it was “difficult to overstate the importance of future arrangements to preserve UK-EU market access for hauliers” and called on the Government to work closely with the road haulage industry to make clear its priorities for future arrangements. It also urged an agreement on reciprocal market access for bus and coach travel; the principle of seeking agreement on mutual recognition in vehicle standards; and continuity in the present arrangements for private motorists.
On the specific circumstances on the island of Ireland, the committee called on the Government to seek agreement on maintaining the existing rights of bus and coach operators and hauliers. On other matters, the committee urged the Government to continue its “high level of engagement” with stakeholder groups.
The renegotiated Withdrawal Agreement and associated Political Declaration of October 2019 included reference to modes of surface transport in line with its predecessor document. It stated the following in respect of future road, rail and maritime arrangements:
Road: “The parties should ensure comparable market access for freight and passenger road transport operators”, subject to certain underpinnings and obligations, and “should consider complementary arrangements to address travel by private motorists”.
Rail: “The parties agree that bilateral arrangements should be established, as appropriate, for cross-border rail services, including to facilitate the continued smooth functioning and operation of rail services, such as the Belfast-Dublin Enterprise Line and services through the Channel Tunnel”.
Maritime: “The parties note that passenger and cargo connectivity in the maritime transport sector will be underpinned by the international legal framework” and “should also make appropriate arrangements on market access for international maritime transport services”. In addition, the future relationship “should facilitate cooperation on maritime safety and security […] consistent with the United Kingdom’s status as a third country”.
However, neither the UK nor the EU brief to their respective negotiating teams featured maritime or rail issues prominently. Road transport, on the other hand, received more attention.
The UK position was essentially that UK and EU road haulage and passenger transport operators “should be entitled to provide services to, from and through each other’s territories with no quantitative restrictions”.
By contrast, the EU position was that while it envisaged open market access for bilateral road freight transport, UK road haulage operators “should not be granted the same level of rights and benefits” as those enjoyed by EU hauliers when travelling within the territory of a member state or from one member state to another. It called for level playing field rules to apply to operators and drivers, and non-regression on current standards.
Status of UK-EU negotiations with 100 days until the end of transition arrangements
Transport has been the subject of talks during several rounds of the negotiations to date. However, it has been reported that road haulage remains a “point of friction”.
On 2 September 2020 the EU’s chief negotiator, Michel Barnier, elaborated on the EU’s reservations about the UK’s requests in this area during a speech at the Institute of International and European Affairs in Dublin. He noted that while the UK wanted a “clean break” from the EU, this did not appear to extend to areas such as transport in which British negotiators were “still seeking continuity”. Arguing that UK demands on road haulage were too close to single market rights, Mr Barnier said:
“The UK Government is still looking to keep the benefits of the EU and of the single market, without the obligations. The UK often says it would be in the EU’s interest to grant it a special status in these strategic areas of cooperation [transport, energy, goods conformity assessments and on aspects of police and judicial cooperation]. But, frankly speaking: is it really in the EU’s long-term economic interest? For instance, …British proposals on road transport would allow British truckers to drive on EU roads without having to comply with the same working conditions as EU drivers.”
In a post-negotiation statement on the eighth round of talks issued on 10 September 2020, Barnier said that the UK; “had not engaged on … level playing field requirements” in connection with transport matters.
The UK’s chief negotiator, Lord David Frost, set out the Government’s position on the state of the negotiations generally. He is reported as having said the Government was “not going to accept provisions that lock [the UK] into the way the EU do things”.
There is a perfect storm brewing combining the effects of:
- a no-deal end to Brexit transition;
- a new set of requirements for goods movements reporting – along with a supporting software system that it appears will not be ready, let alone tested, by 31December;
- potential interruptions due to response to terrorist threats – such as occurred on 16 September causing “operation stack” to be deployed; and
- increasing reluctance of drivers to travel for extended periods abroad due to Covid-19 concerns.
Transport, logistics and supply chains will be severely stretched and tested in the Christmas and New Year period between Great Britain and Europe. Delays and disruption to continuity are now all but inevitable – it is a question of degree with ‘deal or no-deal’ a key factor. The situation between Great Britain and Northern Ireland, and between Northern Ireland and Ireland is even more fraught.