Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021
(3 years, 9 months ago)
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Baroness Randerson
That this House regrets that the Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021 (SI 2021/58) will have a detrimental impact on heavy goods vehicle drivers and the hours they will be required to work, and does not provide clarity for such drivers on how the temporary exemptions to requirements for rest breaks will operate.
Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
Baroness Randerson (LD) [V]
This instrument was laid on 21 January and came into force on 22 January. As a negative instrument, we had no opportunity to debate it here before it came into effect. It was an extension of the temporary suspension of regulations on drivers’ hours and tachographs which applied from 23 December to 21 January. These regulations allow an increase in the maximum drivers’ hours from nine or 10 hours to 11 hours driving per day. They also allow a weekly rest period to be taken after seven days rather than six, and the fortnightly limits on hours driven increase from 90 to 96 hours.
These restrictions were initially introduced in the face of disruption in December due to coronavirus restrictions and the very heavy traffic to the ports caused by pre-Brexit stockpiling. There were long queues on the motorways in Kent and elsewhere, amid stories of drivers stuck in their cabs for days with the accompanying lack of toilet and washing facilities. There was an expectation, which I think we all shared, of further disruption to traffic through the borders as the additional Brexit bureaucracy kicked in during January. The last-minute nature of the agreement had not allowed time for hauliers to prepare.
However, what happened was rather different. Although it takes much longer to deal with the paperwork, the lorry queues did not materialise because many hauliers and many companies, particularly SMEs, simply opted out of the market and ceased to send goods to the EU. Hence, the officially confirmed 41% drop in EU trade during January. Covid has had an impact as well, of course, but trade within the EU dropped by only 10%.
Let me remind noble Lords why we have these strict rules on driving hours. They are part of our previous EU membership. They are there for road safety reasons, based on accident statistics. As a country, we have always been very proud of our road safety record. It is nevertheless true that some of our worst motorway accidents have been caused by lorries, where a significant factor has been driver tiredness. Limits on drivers’ hours are also an issue of decent, humane working conditions. This is especially important in an international industry with lots of small companies and solo operators.
I have a number of questions for the Minister. Given that long queues have not been a problem, why is it necessary to renew these exemptions? The Government cite shortage of drivers as a reason why longer hours are necessary. However, the Road Haulage Association reports a fall in the number of drivers—especially foreign drivers—willing to drive in the UK because of border bureaucracy. Does the Minister have any figures on this?
The Government talk about temporary teething problems at the borders but Brexit is permanent, and so is the bureaucracy that comes with it. Can the Minister give us an assurance that she will not be back here next month asking for further relaxation? This decline in road safety standards and erosion of workers’ rights cannot become permanent. If she cannot give us that assurance, can she at least ensure that in future this will not be slipped through by negative procedure. The trade union Unite emphasises the cumulative impact of fatigue, so the longer this goes on, the more dangerous it becomes.
When the Secondary Legislation Scrutiny Committee drew our attention to these regulations, it emphasised how vague some aspects are. Can the Minister provide clarity on the meaning of the guidance that these exemptions should be applied only “where necessary”? How has it been enforced? The DVSA monitors and checks these records, so can we have an analysis of those checks from the last couple of months?
The exceptions are very broad and apply across the country, not just on particular routes to the ports. Why not? Are checks being undertaken outside port areas to see if there is any abuse of these laxer rules? The relaxation of the rules was requested by industry bodies and Defra. Can the Minister confirm that road safety bodies were consulted? What was their view?
I put down this regret Motion primarily out of concern for road safety, but also because of concern about the situation at our borders. Can the Minister update us on progress with the inland border facilities the Government are building? Those are designed to allow drivers to rest up as well as to process loads and provide border paperwork facilities. Those facilities should solve any problems and make further relaxation of these rules unnecessary. I do not intend to call a vote at this time. My purpose is to seek answers and I look forward to hearing the Minister’s response.
Lord Berkeley (Lab) [V]
My Lords, I am very pleased to follow the noble Baroness and to speak to my regret Motion on these regulations. I share many of her concerns. I find the Explanatory Memorandum particularly arrogant and vague on the reasons for the need for this regulation. Paragraph 7.2 says that
“disruption to … supply chains could occur at very short notice.”
There has been no evidence of this happening—I shall come on to the number of vehicles going through in a minute—or even of any fear of it happening ever since the new regulations came in at the beginning of January.
Everybody knew that there were new regulations. We had spoken before in this House about the fact that many people were unprepared and that the Government were pretty unprepared as well, but there is no change likely to happen at the moment. As for the situation having worsened substantially during the last month, how has it worsened?
The Explanatory Memorandum says:
“Some usual mitigations (such as training more drivers) are not available.”
There has not been a need for more drivers because the traffic has dramatically dropped. Then it says:
“The situation is exacerbated by the impact on vehicle flows of changes to border controls following the end of the transitions period of the UK’s exit from the EU.”
Where is the evidence for that? There have just been fewer trucks because a lot of people are deciding not to go, for reasons that we have debated.
The noble Baroness talked about the extension of hours permitted in these regulations. On the face of it, it is not very great but, on the other hand, it comes on top of some pretty long hours limits anyway. As she so rightly says, this is actually a serious road safety issue. Can the Minister tell us whether there is any evidence of further accidents due to this? How much enforcement of the longer hours has taken place, and has any action been taken? I suspect that, as with most other tachograph issues, it is done only very rarely.
I think the real issue here is that we have fewer drivers, and we also have many fewer trucks. I want to spend a minute or two looking at the chaos that I think there has been over the statistics of how many trucks have been counted going out of the UK. The Government published a press story on, I think, 7 February disputing the figures published by the Road Haulage Association. The Road Haulage Association looks after its members’ interests, and it suggested that the loads to the EU— I quote from its press release—had
“reduced by as much as 68 percent”
since January this year. It wrote to the Chancellor of the Duchy of Lancaster explaining this, and the Government are basically saying it is not true. Somebody must be able to count; it is surely pathetic. I tend to believe the RHA because it has an interest in looking after its members’ interests—they do not want to see delays—whereas the Government are trying to say that everything is all right. This has gone on, with an argument in a letter between the Office for Statistics Regulation and Richard Laux, the chief statistician of the Cabinet Office, talking about whether the data is published or not. The Cabinet Office then published a note to accompany the original press story. In other words, this is damage limitation. The key, to me, is a quote from the Port of Dover on 8 February that said:
“Traffic continues to flow smoothly through the Port of Dover post-Brexit transition.”
Does that not tell us that there is no problem that needs to be cured?
As the noble Baroness, Lady Randerson, mentioned, I hope the Minister will assure the House when she responds that this will be the last time that they try to extend these regulations, and there will be no more of these because, as the noble Baroness said, this is a road safety issue. The limits that were necessary before the Covid epidemic and before Brexit are still necessary now. It seems to me that, in the eyes of the Government, the supply chain is more important than road safety, and that is a very serious issue.
Lord Rosser (Lab) [V]
These regulations have the effect of increasing the fortnightly driving limit from 90 hours to 96 hours. They also, as a result, raise the likelihood of a driver not being able to take proper rest away from work—that is, away from the cab of their vehicle. There have been other relaxations of drivers’ hours since April 2020, with this latest one following the UK-EU agreement being for the longest period of time. Normally, such relaxations are for very short periods of time and have been very specific to particular sections of the industry. However, due to the definition of “exceptional circumstances”, this latest relaxation in reality covers practically every professional HGV driver in the country, including those delivering to the UK from other countries.
It also needs to be said that the key purpose of drivers’ hours regulations is road safety and the welfare of drivers. Any relaxation potentially puts not just the drivers covered at risk but all road users as well, through HGV drivers either not having appropriate periods of rest or working for longer periods of time or both. Could the Government indicate in their response whether these latest regulations, which come to an end in about two weeks’ time, are going to be further extended beyond then? If so, why?
In laying these regulations, the Department for Transport said that the relaxations
“continue to be required because of both delays at the borders and the reduction in driver numbers due to Covid-19.”
Could the Government in their response say what these delays at the border are and what has caused them? The Secondary Legislation Scrutiny Committee considered these regulations and concluded:
“Although a contingency provision may be needed, we were not clear about the conditions in which these exemptions are intended to be used and where the responsibility for implementing these decisions lies. The House may wish to ask the Minister to provide a fuller explanation.”
That is what I am now doing. Expanding on this, the committee said:
“These relaxations are not restricted to port areas or to essential supplies, and the definition of when they can be used, ‘when necessary’, is very vague. There is also some blurring in this policy between the responsibilities of the driver and the operator in deciding when to use the extended hours, and we are concerned that drivers may feel under pressure to use them. A submission from Unite the Union illustrates the problems likely to arise. The sector is very diverse, with both employed and self-employed drivers, and the balances of risks and advantages may differ between these groups.”
No doubt the Minister will wish to comment on those observations from the committee.
Could the Government also say in their response to what extent the increase in the fortnightly driving limit—from 90 hours to 96 hours—has actually been used, and whether it has been used more in relation to some routes than others, whether it has been used more by some firms than others, and whether it has been used more by some sectors than others? Could the Government also say under what circumstance and why the allowable increase in hours has been applied, so that we can have an idea of how and address what situations the “where necessary” criteria has actually been brought into play.
The Secondary Legislation Scrutiny Committee referred to the submission from Unite the Union. One gets the impression that the committee gave rather more consideration to what Unite had to say than perhaps the Government did. When asked by the committee who had been consulted, and whether any drivers’ representatives had been included, the Department for Transport replied:
“Relaxations to drivers’ hours rules were sought by a number of individual firms, representative bodies and Defra … Unite the Union was consulted informally — and for the record was not in support of the relaxation as made.”
What a dismissive response. The view of Unite—and the drivers’ regulations are there for safety reasons—was simply “for the record” following informal consultation as far as the DfT was concerned, not views that should be reported with reasons given why they were not taken on board. How revealing that we have to turn to the Secondary Legislation Scrutiny Committee to find out the concern of Unite, since there is nothing in the Explanatory Memorandum, which simply states:
“There has been no formal consultation on this Instrument, although advice has been taken from representatives from the logistics and retail sector”,
and that
“an impact assessment has not been produced”.
Could the Government tell us what their assessment was, and the basis of that assessment, of the potential impact of this instrument on safety, bearing in mind that a key part of Unite’s concerns was that, the longer the period of relaxation from the drivers’ hours rules—now some three months—the greater the potential risk to safety? It is not enough to say that, under the relaxation,
“Drivers should not be expected to drive whilst tired”.
If that is deemed a responsible approach, then there is no need for any rules at all beyond that. In its submission to the committee, Unite expresses concern about the ability of enforcement officers to be able to enforce the relaxed regulations effectively, not least in respect of international drivers whose operating base may be in another country. No doubt in their reply the Government will wish to provide the hard evidence that enforcement officers had enforced the regulations effectively.
Unite welcomes the fact that drivers and their unions should be involved in managing any relaxation, but said that
“in reality drivers are not given the choice, operators simply plan drivers’ routes and then apply a relaxation if needed.”
Do the Government accept that that is the reality? If not, could they provide the evidence that it is not the case?
Concluding its submission to the committee, Unite said it understood
“that there are often genuine reasons for using a relaxation in very limited circumstances. This relaxation, however, is far more than that and in our opinion goes much further than is actually necessary even under these very difficult circumstances”.
Unite believes this could be
“the start of watering down vital safety rules for professional drivers.”
This is now the opportunity for the Government to provide the hard evidence to prove that these potentially safety-compromising regulations, applicable to practically every professional HGV driver and for a longer period than normal, have been necessary and that it was not a case of bringing them in simply because some firms wanted them so that they were there if required across the board without the Government really knowing either whether they really were required across the board or the extent to which they would be required.
Earl Attlee (Con) [V]
My Lords, I am grateful to the noble Lords who have introduced this debate. Before speaking to it, I remind the House that I still drive heavy goods vehicles under the drivers’ hours rules from time to time and for private purposes. Some of these vehicles are very heavy indeed and are not just a horsebox. However, the new regulations in question are very unlikely to affect me.
In the distant past I have driven more extensively for commercial reasons under the drivers’ hours rules. Many years ago, either under military authorisation or on international aid operations, I drove hours far in excess of what are allowed under civilian rules. The House should know that the military nowadays adheres— I would say slavishly—to the civilian rules, even on operations. It may help the House to be aware that I am a qualified HGV driving instructor, although I accept that I might be a little out of date.
There are two reasons why we have limits on drivers’ hours. The first and most important is safety, as observed by many noble Lords. Clearly, if a driver drives for too long or takes insufficient rest, there is a direct safety consequence. However, there is another important reason for having the rules, and that is to set an economic level playing field. Road haulage operations are extremely competitive, and one easy way of securing an economic advantage is to make the drivers work harder for longer and to take greater risks with fatigue. The combination of the drivers’ hours rules and the working time directive sets a floor so that drivers are not abused, safety is maintained and, most importantly, operators have to find other ways of being more competitive. The Minister is helping in that regard by looking more closely still at longer and heavier vehicles.
The rules have been carefully set and devised over many years, perhaps before we even joined the EU, so that a competent driver, adhering to the rules over many years, can earn a living while not putting himself or herself or others at risk of fatigue, and, as I have already indicated, the rules set an economic baseline. This means that relaxing the rules very slightly for a few months will not create a safety problem, and I do not believe the Minister would have made this order if that were the case. These are very minor flexibilities designed to cope with the current situation, or with one that could arise. I do not believe that businesses will build them into their business model because they are such temporary exemptions, nor do I believe that they will plan their day-to-day transport operations taking account of the flexibilities. The flexibilities are designed to deal with something that goes wrong; they should not be regarded as normal.
Another point that should not be overlooked is that it can be very stressful for conscientious drivers to adhere to the drivers’ hours rules, especially in the face of disruption. Avoidably stressing drivers is not, I suggest, a sensible course of action.
From my direct personal experience of these matters, I can tell the House that the amending regulations do not compromise safety. I urge the House to kindly reject the Motions and support the Minister and the sensible, temporary flexibilities that she has provided the industry with.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to follow my noble friend. I will be supporting the regulations before us, but I have a number of questions for the Minister.
The regulations expire at the end of March but, as we learned when the Minister summed up the debate called by my noble friend Lord Taylor of Holbeach on 4 March, controls are to be introduced at UK ports for the first time in April and again in July. Does it not seem simple sensible to keep these extensions on the table until the new controls have had the chance to bed down, so that we can see whether they cause any serious delays at ports?
The exceptions are marginal; it is an extension of six hours in every fortnight, so I imagine the Minister will say the impact is quite low. I note the dismay that was expressed by the Secondary Legislation Scrutiny Committee on a number of issues in looking at the this instrument, not least, I understand from paragraph 6 of the report, that Parliament was not one of the bodies notified of the exception. Could the Minister confirm whether the Health and Safety Executive and the Royal Society for the Prevention of Accidents have been involved in the drafting and reviewing of the measures before us?
Like the noble Lord, Lord Rosser, I have a number of concerns, which he has eloquently addressed, about the level to which the measures are deemed to be necessary and about why the legislation is all framed in relation to the driver, putting a lot of emphasis regarding enforcement and the understanding of what is necessary on the driver. The Minister will be aware that there is a severe shortage of drivers of heavy goods vehicles in this regard. I note in passing that a number of these drivers, based in North Yorkshire, come from Poland and other parts of the European Union, meaning that, at least initially, they are not used to driving on the left-hand side of the road. I do not know whether that is a factor that the Minister has taken into consideration.
Is it the Minister’s intention that, when the Driver and Vehicle Standards Agency looks at the operator records, including tachographs, following on from this extension, the checks will be reported to Parliament so that we in both Houses can form a view as to whether the system has been abused in any way? That would enable both her department and this House in particular to come forward with simpler, clearer legislation without the need for so much administration, as called for in paragraph 16 of the committee report.
The normal restrictions on drivers’ hours are based on accident statistics for safety reasons. So why will they be lifted? On what basis? Have there been fewer accidents?
Does the Minister stand by the remarks that she made on 4 March that the measures taken regarding the Northern Ireland protocol are temporary, technical steps? Were they perhaps ill advised, given that we have now been taken to court by the European Union in this regard?
I will add two further questions. Is the Minister in a position to address the issue of a potential shortage of drivers? There is also a particular problem of trucks returning empty from the European Union. Are these issues that the Government are likely to address?
I welcome the fact that the Minister is committed to communicating, as she put it on 4 March, with the interested parties in the UK and with our European Union counterparts. It would be helpful to know what communications she is having in connection with the further controls in April and July.
This is quite a nostalgic journey for me, as I started my days in politics as a staffer for the European Conservatives in the European Parliament, working with eminent spokesmen such as the late James Moorhouse and, latterly, Bill Newton Dunn. I take a close and continuing interest in these matters before the House this afternoon.
Lord Snape (Lab)
My Lords, the House of Lords Secondary Legislation Scrutiny Committee had, if not harsh words, some words of doubt about the Government’s proposals. Partly for those reasons, I support some of the sentiments expressed by those who seek to oppose these regulations. Among the concerns that the committee raised was the lack of parliamentary scrutiny before these exceptions came into force—a familiar source of complaint. I do not particularly blame the noble Baroness for this, as it seems all too typical of the present Government that the only chance the House has to debate these regulations is when they have come into force and there is not much we can do about them. There seems to be a continuing pattern here, which Ministers should look at.
The committee went on to ask about the guidance to use the exceptions only “where necessary”—a vague phrase. On its behalf, we seek a definition from the Minister on when a “where necessary” situation will arise. It went on to talk about whether the system would be abused for commercial advantage. Most heavy goods vehicle operators in the United Kingdom are perfectly reputable people, but there is a fringe element within the road haulage industry where pressure on drivers to exceed permitted hours happens from time to time and it is difficult for drivers, particularly for smaller operators, to resist.
My noble friend Lord Berkeley mentioned consultation, particularly with the primary trade union involved in heavy goods vehicle operation in this country, Unite. A piece of Civil Service wording came back about that consultation. I forget the exact words, but it was that the union was not kindly disposed to the proposals on excessive hours. That was one way of putting it. In December, Unite issued a press release about the increase in drivers’ hours, under the heading
“Unite condemns ‘dangerous and useless’ relaxation of HGV driving rules in response to Dover delays”.
That is a bit stronger than we were led to believe from the committee’s wording and a lot stronger than the Government might like. I wonder whether that informal consultation with the trade union was genuine or consisted of a telephone call from the Minister’s department saying, “This is exactly what we are going to do”.
What we are talking about is a solution in search of a problem. It is not a lack of drivers or drivers’ hours causing delay but a lack of customs officers in the Port of Dover in particular. The noble Baroness, Lady McIntosh, referred to the number of empty vehicles coming back from the continent. It is no secret that the Road Haulage Association is annoyed by what it sees as a failure of the Government to recruit the necessary number of customs agents to ensure that these delays do not continue. It is not as though this problem has arisen unexpectedly; it is over four years since the country voted to leave the EU, yet we seem no nearer to recruiting sufficient customs agents to help prevent these delays.
I draw the noble Baroness’s attention to last Sunday’s Observer. Under a heading about how delays at ports would go on for months, Mr Richard Ballantyne, the head of the British Ports Association, said that most ports had seen a recovery in shipments over recent weeks, although the delay to import checks had
“put off a problem rather than resolved it”.
The Road Haulage Association says pretty much the same. The noble Lord, Lord Frost, who has been appointed by the Government to resolve these problems, says that they are temporary and that, since January, things have picked up. I go back to the point mentioned by the noble Baroness, Lady McIntosh: there are still a heck of a lot of heavy lorries passing between this country and the European Union. The trouble is that too many of them are empty, for the reasons that I have just outlined. Increasing drivers’ hours and the consequential impact on road safety are not going to help that. I hope that the Minister can reassure us this afternoon and tell us how many extra customs agents—a question I put to her some weeks ago, but no answer came—have been recruited and whether she is tackling the real problem, rather than the Government sending up a smokescreen, as these proposals appear to be.
Lord Kirkhope of Harrogate (Con) [V]
My Lords, while it is inevitable that, in debating these regulations, one might legitimately feel that we have missed the bus, it would be more appropriate to apply the term déjà vu. Taking note of something that has already happened is of rather less value that scrutinising proposals and offering advice before implementation. It is now only a matter of a few days before these temporary provisions end. I assume that we might hold a similar debate in a couple of months if we see a further extension of the provisions but, with déjà vu, we can at least look back at the approach to drivers’ hours and conditions to contrast and compare. In doing so, perhaps we might better judge the validity or otherwise of these regulations.
Since the 1930s, Governments have recognised that commercial pressures can lead transport operators and drivers to indulge in excessive driving that can endanger themselves and other road users. Fatigue and its effects on driving safety were first properly recognised in the Road and Rail Traffic Act 1933, which, incidentally, was two years before we even had driving tests in this country. It was introduced to protect us all from the negative effects that I mentioned, and it began a process in which Governments ever since have followed some basic principles, namely: promoting road safety by requiring drivers to have adequate rest and breaks, and preventing excessive driving; a desire for common international rules and to ensure that competition between hauliers and coach operators is fair; and giving drivers reasonable conditions of work and leisure, and stopping exploitation.
UK legislation on drivers’ hours was introduced by the Transport Act 1968. When the UK joined the then EEC, it adopted the European social regulations of 1969. The use of tachographs had been compulsory in the EU since 1975, but the UK initially failed to implement this requirement until obliged to do so in 1981. The only major changes since then have been to incorporate the provisions of the working time directive in 2005, limiting total working time, although we have introduced many detailed provisions of implementation by statutory instrument since then. By and large, with the agreement of business and the unions, we have adhered to these provisions, with the drivers’ hours regulations being especially strictly followed.
In 2009, the then Government held a consultation on the clarity of the rules which indicated that the complexity and finer details were still misunderstood. Governments have expressly stated that only in exceptional circumstances could there be any amendment to the rules. Looking back, that policy has been correctly followed. Examples of variance and relaxation came about with the foot and mouth disease in 2007, a derogation for military reservists, also in 2007 and the proposed fuel tanker drivers’ strike in 2012. The current Government introduced emergency relaxation, as we know, to protect the supply chain because of Covid-19 between March and May last year. They are continuing to pursue this by successive extensions, citing not only the Covid situation but the effects from us leaving the EU. To the extent that the pressures are temporary, the regulations can be accepted but, as we move out of the pandemic, any wish to continue these arrangements to cover ongoing problems brought about by our new EU status and our cross-border trade should be examined more vigorously.
There are some concerns that there could be either repeated temporary easing of regulations, or a longer-term or permanent situation. I would like the Minister to give greater assurances on this in her concluding remarks. I would also be grateful if she could confirm that the proposals we are looking at today change only drivers’ hours and rest periods, and that the more extensive rules and regulations dealing with the way in which driving periods and rest are allocated in the course of any week, and compensation arrangements for reductions in rest periods, are not being affected by these provisions. Employers and operators need reassurance on this point. Employers in particular have great difficulty in interpreting anything that is not crystal clear as to the legal position. It would be most unfair if these changes encouraged unfair competition. We all have a duty to protect both employers and employees, just as was described and hoped for back in 1933—but, of course, I will support my noble friend on these measures.
Baroness Foster of Oxton (Con)
My Lords, first, I have listened very carefully to the comments made by the noble Lords who put down the regret Motions that triggered this debate. In particular, it is very good to see the noble Lord, Lord Berkeley, again—albeit virtually —as we met regularly over many years during my time as an MEP. He is indeed very expert on these matters. Today, however, I will be taking a rather different point of view, I am afraid.
I begin by echoing many of the points made by my noble friends Lord Attlee and Lord Kirkhope. A few days before Christmas, the President of France took the arbitrary decision to announce a travel ban on all lorries travelling between the UK and Calais. Around 3,000 drivers were thrown to the wolves and told that they would need a Covid test before they would be able to proceed. They were left high and dry in the most appalling circumstances. Despite the heroic efforts of our Armed Forces, the NHS and volunteers, it took several days and more. None of those drivers would have ever seen their families at such a special time.
Should I put these delays down to a force majeure or exceptional circumstances? Was there inclement weather? No, there was not. Was there industrial action, or were there blockades? No, there were not. Actually, it was neither: it was, unfortunately, blatant politicking of the worst order. The drivers ended up as pawns in a political game that still continues. This was an avoidable catastrophe.
No noble Lords have so far mentioned what I am about to say. The main thing about the temporary exemptions is that they had already been agreed and put in place by the European Commission as well as the UK Government because, of course, our Regulation 2021 No. 58 is a combination of EC Regulations 561/ 2006 and 1071/2009, which deal with drivers’ hours and tachographs. Enlargement in 2004—plus Romania, Bulgaria and Croatia latterly—highlighted the challenges that the hauliers faced as, geographically, the routes became more challenging. Annexes one to four of COM(2017) were compiled following the Council reports of 2013-14 on the performance of each member state. The UK always rated highly, with top marks on roadside checks and compliance—just to dispel the myth. Agreement followed to update the regulation.
For international transport to operate, flexibility is paramount. My former career was in the most highly regulated mode of transport: aviation. I negotiated the terms and conditions of thousands of crew over many years, including their scheduling agreements, as well as the regulation in the European Parliament on flight time limitations. I am therefore fully aware of the planned and unplanned operations that are required. I also covered road, rail and maritime, and was heavily involved in the regulation that we are discussing today. Just as an aside: if it were not for the flexibility of crew and supply chain and ground staff in maritime, road, rail and all these sectors, I doubt that any of us would ever get from A to B, and neither would the goods that we receive or send.
Sadly, Covid-19 has wreaked havoc across the globe. There is a Europe-wide shortage of drivers. Small operators with one or two lorries have been particularly badly hit, yet they have kept going throughout this pandemic, delivering medicines, food, fuel, essential goods and much more. They deserve better than this. There is no evidence to suggest that these temporary measures jeopardise lives. These drivers are highly professional and use their best judgment every day. They are hugely concerned about the lack of safe parking, which still exists, for their trucks across Europe. They are now being dragged into this appalling weaponising of the vaccine by the EU and have been caught up in the backlash.
I am pleased that my noble friend the Minister is updating the House today. This is required and maintained throughout the implementation, rather than delegated, rules, which the European Union frequently favours to keep Parliament out of the loop. I hope that the whole House will support the regulations but, more importantly, actively show its support for and gratitude to our road hauliers for the invaluable work that they have done and continue to do.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, I thank the noble Baroness, Lady Randerson, and the noble Lords, Lord Rosser and Lord Berkeley, for giving me the opportunity to explain the Government’s position. Of course, I thank all noble Lords for their contributions.
Let me start by saying that we are absolutely committed to ensuring the welfare of drivers and protecting road safety. This Government recognise the importance of the long-standing drivers’ hours rules to achieving both of those objectives. We therefore deploy these relaxations with care.
It is worth considering the landscape back in mid-January when these regulations were laid. New customs arrangements had recently been put in place, and both traders and hauliers were adjusting to the new environment. This was still the case in mid-January. Covid infection rates were high, at 376 per 100,000, which might well have caused localised disruption to the availability of drivers. The training and testing of new drivers had stopped, causing additional pressures on a tight labour market for HGV drivers, and we were seeing a changing pattern of domestic retail demand due to lockdown. Finally, there remained the potential for unilateral interventions from third parties, as noted by my noble friend Lady Foster. For example, we saw the French Government unilaterally requiring Covid testing for hauliers. Other interventions clearly could have happened too. That was the landscape with which we were faced when we took this decision.
Furthermore, we heard concerns from those in the supply chain that localised disruptions might occur, and possibly at very short notice. We heard the concerns of Unite the Union and tried to mitigate them as much as we possibly could to ensure that any action we took was limited. The Government concluded that there was significant evidence to suggest that disruption could occur; therefore, as a precaution, we took the decision to continue with the temporary, limited extension to drivers’ hours.
The 44th report from the Secondary Legislation Scrutiny Committee published on 4 February also acknowledged that contingency measures were required to deal with these risks. I thank the committee for its work on this SI, and I apologise if there was information missing from the Explanatory Memorandum that should have been included. I will encourage the department to do slightly better next time.
Some of today’s debate has focused very much on international haulage, which a number of noble Lords have mentioned; the noble Lord, Lord Berkeley, talked about fewer trucks going across via the short straits. However, this is not just about international haulage: the issues I have just outlined from the landscape that we were faced with also impacted domestic haulage, which is why it was so important that we put these changes in place. A couple of noble Lords have complained that Parliament was not able to scrutinise this SI, but this is a negative SI, which is a standard parliamentary procedure. We are scrutinising it today, but noble Lords will understand that we will have to follow parliamentary procedure, as we have in this case.
I turn to the actual implementation and the safety and welfare of drivers. It is important to remember that these changes are very limited in nature. In terms of the requirements in the rules, whether it be breaks during the day, daily or weekly rest periods or weekly and fortnightly driving limits, none of these have been removed. Some have been relaxed in a limited and controlled way, and I confirm that compensatory rest arrangements, which are all related to weekly rest, stay in place, and working-time rules for drivers are unaffected.
This previously unprecedented approach of relaxing drivers’ hours had already been used in the UK, in spring 2020, at the start of the pandemic. This approach was also taken by many parts of Europe at the time. The extent of the relaxations now in force is based on that experience, but it is even more limited, especially for domestic road transport. The guidance states that relaxation should be used “only where necessary” and not at the expense of driver or road safety. While we did not consult specific external parties on road safety, the Government are content that these measures are consistent with our ambitions for improved road safety.
Turning to the guidance that we published on 20 January, before the SI was laid, I note a number of concerns over the definition of “necessary”, when allowing the relaxations to be used. The guidance makes it very clear that any relaxation of these rules emphasises the necessity of the relaxation, particularly when other supply-chain management interventions may be available to alleviate issues. “Necessary” is not defined in the regulation itself, and it is liable to vary significantly case by case. Published guidance assists the consideration of what is and is not necessary, but the circumstances for each use will be different. Operators using domestic relaxation are required to indicate that they intend to use, or have used, the relaxation, which assists transparency and the later checking of compliance, including the context of necessity.
The guidance is material to whether the relaxations have been used correctly and reputably by operators and their transport managers—and, if they have not been, they can be held to account. The DVSA has extensive powers to investigate: it can investigate domestic and international hauliers and domestic operators, and it does this across the country, not just at the ports. Of course, it can issue penalties and refer operators and transport managers to the transport commissioners if there are infringements.
The guidance about relaxation explicitly confirms that
“employers remain responsible for the health and safety of their employees”.
It also confirms:
“Driver safety must not be compromised. Drivers should not be expected to drive while tired”.
It clearly states:
“The practical implementation of the temporary relaxation should be through agreement between employers and employees and driver representatives”,
such as Unite the Union. As noted, a requirement of the use of the current relaxations for domestic journeys is that the operator informs DfT that the relaxation will be used. Reported use of the current domestic relaxation has been very limited.
There are 16 haulage firms still using the relaxations that end on 31 March 2021—that is a total of 25 operating licences because, of course, one haulage company can have a couple of them. The noble Lord, Lord Rosser, asked which sectors these companies are in. I do not have a detailed breakdown, and I am not entirely sure that, with 16 haulage firms, it would be useful, but most of them transport freight, and the rest supply fuel. As such, the information about the people using these relaxations is passed to the DVSA—obviously, its enforcement operators will be aware of who is using these relaxations, and they can check how they were used. It is also the case that drivers using them must note on the back of their tachograph charts or the printouts the reasons why they are exceeding the normally permitted limits.
There was also a comment in the SLSC report about the initial exceptions that the Government made in December, and I reassure noble Lords that, as with these regulations, we followed the agreed process. These were put in place administratively for up to 30 days—that is the process set out in the regulations.
The noble Lord, Lord Snape, returned to the subject of customs agents, and I am delighted to be able to return to it again. Noble Lords will be aware that the Government have set out a new timetable for introducing border control processes to enable UK businesses to focus on recovering from the pandemic. This will also give us time to ensure that the inland border facilities are fully functional. Full border control processes will now be introduced on 1 January 2022, six months later than originally planned.
The Government do not directly employ customs agents or customs intermediaries, and we do not have a target for the number of customs agents. However, traders and hauliers are responding to customs requirements in a wide variety of ways. Many in the sector have innovated and brought in IT solutions to automate the process. This has reduced the number of staff required. We have helped by making more than £80 million of support available, including flexible grants that can be used for IT and training, as well as for recruitment.
There is an alternative universe. For a moment, let us assume that the Government had not taken this precautionary action and that, for whatever reason, freight flows had been impacted—perhaps to the extent set out in the Government’s reasonable worst-case scenario. In such circumstances, I could quite understand being hauled before your Lordships’ House to explain why, if we saw the possibility of freight disruption coming, we did nothing about it and were negligent in not temporarily extending drivers’ hours. Hindsight is a truly marvellous thing—and there has been a fair dollop of it in today’s debate. I remain content that we made the right decision and I hope that I have been able to reassure noble Lords. I can confirm to the noble Baroness, Lady Randerson, and to all noble Lords, that we will not be extending the relaxations beyond 31 March 2021, when this SI expires.
In summary, by enabling and extending the relaxations when we did, we reduced risk and enabled the supply chain to function. If there is a vote on the regret Motion, I respectfully ask noble Lords that they vote not content.
Baroness Randerson (LD) [V]
My Lords, I am grateful to the Minister for her reply. I will look carefully in Hansard, and I am sure that she will write to us in her usual courteous manner to answer any questions with which she has not been able to deal. I appreciate the detail and her final reassurance. With that, I beg leave to withdraw the Motion.
Lord Berkeley
That this House regrets that the Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021 (SI 2021/58) will allow the continuation of relaxed restrictions on the normal rules on heavy goods vehicles drivers’ hours without evidence having been provided of the need for such a continuation or of its effect on road safety.
Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)
Lord Rosser
That this House takes note of the Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021 (SI 2021/58).
Relevant document: 44th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)