Consultation outcome

Post-implementation review of the Railways (Interoperability) Regulations 2011 (RIR 2011)

Updated 15 March 2022

This was published under the 2019 to 2022 Johnson Conservative government

Introduction

We are seeking to gather views about the Railways (Interoperability) Regulations 2011 (RIR 2011) as part of our post-implementation review (PIR) to:

1. Assess the effectiveness of the regulations.
2. Determine if they are achieving their intended objectives and whether there are any unintended effects.
3. Identify the type of interoperability regime that would work in the UK’s best interests.

A PIR is a statutory process that must be completed every 5 years.

This PIR is an opportunity to gather the views of stakeholders about the type of interoperability regime they would like to see.

Following the UK’s exit from the EU and the end of the transition period, the UK now has greater freedom to determine the regulatory framework for rail technical standards.

This greater flexibility, coupled with the government’s ambition, through Rail SPEED, to deliver rail infrastructure more efficiently and at a significantly lower cost wherever possible, makes it an ideal time to carry out this review.

In particular, we are keen to hear from stakeholders on how our greater flexibility following our departure from the EU might be used to make changes to the interoperability regime in the UK to make it work as effectively as possible.

Context

We have a statutory requirement to review the 2011 regulations to assess if:

• they are meeting their objectives
• they are still required
• any improvements could be made

The first PIR report was published on 21 February 2017. It found there was an appetite in certain areas to introduce greater flexibility for parts of the UK rail system to help improve UK competitiveness.

The issue of greater flexibility for the UK freight community, as well as Network Rail, when carrying out works on lines that are not part of the Trans European Network, were specifically identified as desirable. The report recommended that we consider amending RIR 2011 at the next suitable opportunity to add more flexibility where possible.

Since publication of the first PIR report, our main priority has been to ensure a smooth transition from EU membership. Until 1 January 2021, there was limited scope for making amendments to the existing interoperability regulations beyond those required for an orderly exit process due to the constraints imposed by EU law.

Since the end of the transition period, we are no longer required to implement EU law concerning interoperability in Great Britain or apply the same processes and technical standards. Therefore, this review now presents a major opportunity to consider more wide-ranging reforms to the existing interoperability regime.

The usual framework for conducting a statutory PIR is to seek the general views of stakeholders on the effectiveness of the regulations. The PIR exercise does not suggest specific changes, but it is intended to frame the new context for UK interoperability so that stakeholders can consider what might be needed in the regulatory regime.

The Office of Rail and Road (ORR), on behalf of DfT, recently carried out a separate PIR of the Railways and Other Guided Transport Systems (Safety) Regulations 2006 for Great Britain. The report for this PIR will be published later this year. The findings of each review will be compared and may help shape future proposals for GB’s interoperability and safety regimes.

We are currently working with Network Rail on Rail SPEED (Swift, Pragmatic, Efficient, Enhancements Delivery). This programme is looking at ways of safely delivering rail infrastructure projects more efficiently and at a significantly lower cost wherever possible. 

The purpose of the PIR is to review our interoperability regime to ensure that it is operating in the best interests of the UK rail sector. The survey will seek to obtain a broad set of views on the effectiveness of the current interoperability regime and how it can be improved.

The government remains committed to a continuing major programme of rail infrastructure investment to:

• improve journeys
• support connectivity
• provide broad social and economic benefits – including levelling up of our economy.

Making sure that we are able to deliver these benefits, by ensuring an effective interoperability regime is in place, is therefore of significant importance.

Background

Interoperability is an EU initiative aimed at improving the position of the rail sector so that it can compete effectively with other transport modes, particularly road transport.

The main aims are to:

• deliver benefits of standardisation through economies of scale for railway components, improving the economic performance of European railways and the environmental performance of the whole European transport system
• harmonise member state design assessment, acceptance and approval processes to prevent barriers to trade and to promote a single European market for railway products and services
• ensure compatibility between European railways to allow for through running of trains between member states

The interoperability regime has been in place in the UK since 2002, when the first set of implementing regulations came into force. These regulations created a framework regime for the authorisation to place into service vehicles and infrastructure for the high-speed network. Subsequent interoperability regulations were made in 2006, which among other things, made some changes to the authorisation process for:

• infrastructure
• rolling stock

RIR 2011 transposed the Interoperability Directive (2008/57) and included the following measures:

• widening of the geographic scope of the interoperability authorisation process beyond the UK’s part of the Trans-European Networks (TEN), to the wider rail network
• enabling a more streamlined ‘type’ authorisation process for vehicles and infrastructure to reduce burdens on industry and safety authorities
• a new provision to create a list to exclude from the scope of authorisation certain lines and vehicles, such as metros, trams and light rail
• a new provision, so that member states can seek a voluntary additional authorisation of vehicles already authorised in another member state
• place a duty on owners of infrastructure to publish data about their infrastructure in line with the requirements set out in a specification for infrastructure
• ensure owners of vehicles supply data for a vehicle register in line with a European specification
• a new provision for the Secretary of State for Transport to create a pre-screening list published by the Department for Transport to assist rail projects when deciding if they are caught by the regulations as upgrade or renewal work, which means they need to be authorised^{[footnote 1]}
• a new facility for the safety authority to include certain conditions and restrictions as part of the interoperability authorisation. For example, in the case of vehicle authorisations, this could enable more flexibility, so that an authorisation need not always apply to the entire UK network
• decriminalising minor offences for process-related issues while maintaining key criminal offences for the use of unauthorised vehicles or infrastructure
• changes to the appeal mechanism, so that an applicant can appeal to the Secretary of State against a decision made by the national safety authority

The current interoperability requirements under RIR 2011

New rail projects, vehicles and infrastructure, are required to seek an interoperability authorisation to place into service before they are first used on the rail network. This process also applies to upgrade or renewal work on existing systems.

The authorisation in GB is issued by the safety authority, based on the evidence of compliance with domestic standards contained within National Technical Specification Notices (NTSNs) published by the Secretary of State, and National Technical Rules (NTRs), which supplement the NTSNs.

In GB, the safety authority is the ORR. In Northern Ireland, it is the Department for Infrastructure. For the UK section of the Channel Tunnel, it is carried out by the Intergovernmental Commission.

The NTSNs became the GB standards from 1 January 2021 and replaced the Technical Specifications for Interoperability (TSIs), which applied previously under EU law. The technical requirements of the TSIs were preserved in the NTSNs for the sake of a smooth transition, but GB now has the flexibility to diverge from EU standards.

Through the application of the Northern Ireland Protocol in Northern Ireland, TSIs still apply.

Projects seeking an authorisation must engage an independent third party to carry out the conformity assessment with the required standards. The NTSNs are assessed by UK-approved bodies and the NTRs are assessed by designated bodies.

Scope of this PIR

We intend to review all of RIR 2011 as it currently applies, including all subsequent amendments made since the regulations came into force. This includes the changes that came into force on 1 January 2021. These corrected aspects of the regulations that would no longer function correctly after EU exit.

This Keeling schedule can be used as guidance to consider all of the changes in a consolidated format.

The regulations apply to all the UK including Northern Ireland, so this review includes the application and impacts of RIR 2011 in Northern Ireland.

However, the context for potential changes in NI compared to GB is different because of the application of the Northern Ireland Protocol in NI. There are significant parts of the EU law for interoperability that will continue to apply within NI, and this will inform what may be possible in terms of changes impacting NI.

The section regarding the Fourth Railway Package gives further context for changes being prepared for the interoperability regime in NI and the Channel Tunnel.

Planned future changes for NI and the Channel Tunnel

Regulatory changes concerning interoperability in the UK are expected to be made in 2021. The first of these concerns the Channel Tunnel and the second set of changes relate to the operation of the interoperability regime in Northern Ireland.

The changes required for the Channel Tunnel concern the continuity of cross-border services. The recast interoperability Directive 2016/797 was introduced in the EU as part of the technical pillar of the Fourth Railway Package. This:

• gave new vehicle authorisation powers to the European Union Agency for Railways
• made changes to the processes for authorising new vehicles to be placed on the EU market

The UK did not implement this recast directive, although it has in place some similar provisions and we are considering the extent to which the legislative framework for the UK section of the Channel Tunnel should be changed for:

• the sake of consistency
• ensuring a unified framework for the whole of the tunnel

There is no intention to reflect the increase in powers of the agency in these changes, as the agency’s powers will not apply to the UK section of the tunnel or for the UK section to dynamically align with EU law. The changes required for NI are related to the continued application of EU law for interoperability as a result of the Northern Ireland Protocol.

Questions

The main questions being asked are:

1. What is your view of RIR 2011?
2. Are there any potential changes that could be made to RIR 2011?
3. What would your recommendations be for the next steps for RIR 2011?
4. Do you have any other general comments?

However, there are additional questions within the survey document itself.

What happens next

The response to this consultation will be published in 2022. Following a review, the Secretary of State for Transport will decide whether the regulations should remain as they are or consult on whether they should be revoked or amended.

1. The provision to publish a list has so far not been used. ↩