Drivers’ Hours, Tachographs, International Road Haulage and Licensing of Operators (Amendment) Regulations 2022
(Limited Text - Ministerial Extracts only)
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Baroness Vere of Norbiton
Moved by
That the draft Regulations laid before the House on 5 July be approved. 10th Report from the Secondary Legislation Scrutiny Committee.
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)
My Lords, these draft regulations will be made under the powers conferred by Section 31 of the European Union (Future Relationship) Act 2020.
The regulations implement fully some of the international road transport provisions in the trade and co-operation agreement between the European Union and the United Kingdom, entered into on 30 December 2020 and known as the TCA. These regulations are mainly about drivers’ hours and tachograph rules for most commercial drivers of lorries and coaches, but also involve the area of international haulage access to the UK.
Section 29 of the European Union (Future Relationship) Act 2020 provides a general implementation clause under which domestic law, including EU regulations retained as UK law, is, where necessary, interpreted in order to implement the TCA. On top of this, the changes being considered by your Lordships’ House today will normalise the relevant TCA provisions into UK domestic law to provide legal clarity. This will also enable UK enforcement officers to enforce against EU commercial drivers of in-scope lorries and coaches operating in the UK.
First, these regulations amend the retained EU Regulation 561/2006, which sets out driving time rules for commercial drivers. Secondly, they amend the retained EU Regulation 165/2014, which sets out rules around the installation and use of tachograph devices—recording devices used for the enforcement of driving time rules. Thirdly, they amend the retained EU Regulation EC 1072/2009, which sets out the rules on cabotage movements. They also amend the domestic Goods Vehicles (Licensing of Operators) (Temporary Use in Great Britain) Regulations 1996, which set out the rules for non-GB operators’ access to GB roads.
The EU drivers’ hours and tachograph regulations are central to keeping our roads safe and were retained as UK law by the European Union (Withdrawal) Act 2018. The retained EU drivers’ hours regulations set maximum driving times and minimum break and rest times for most commercial drivers of lorries and coaches. The consequences of driving any vehicle when fatigued can be catastrophic, of course.
The rules are enforced by the Driver & Vehicle Standards Agency and the police at targeted roadside checks, and by visiting operators’ premises. The principal tool used by enforcement officers is the record generated by the tachograph. The tachograph is a device installed in relevant vehicles that records the driving, rest and break times of the vehicle and its drivers.
The EU cabotage regulation was also retained as UK law by the EU withdrawal Act. For those unfamiliar with cabotage, it is the transport of goods between two places within a single country by a haulier registered in another country. Since 1 January 2021, international market access for hauliers operating between the UK and the EU has been governed by the trade and co-operation agreement. The general implementation clause in the future relationship Act means that domestic legislation has effect so as to implement the commitments in the TCA. However, in order to enable full and effective enforcement, in this case including in relation to visiting EU haulage operations, it is important to align the domestic legislation fully with the TCA’s provisions.
There are three broad categories of amendments that these draft regulations are making. The draft regulations will amend the retained EU drivers’ hours and tachograph regulations to include some specific international road transport aspects that were not required in the context of a no-deal exit from the EU without the TCA. That has quite limited effect.
The draft regulations will also amend the retained drivers’ hours and tachograph regulations to introduce prospective changes agreed in the TCA relating to the introduction of the smart 2 tachograph from August 2023. This includes bringing some smaller vehicles over 2.5 tonnes, used commercially for international journeys, into the scope of the drivers’ hours and tachograph rules from 2026.
Finally, the regulations will amend the retained EU cabotage regulation and the domestic goods vehicle operator licensing regulations to reflect the international road haulage access rights in the TCA. Currently, this legislation still reflects some of the market access arrangements from when the UK was an EU member state. However, the retained Regulation 1072/2009 has already been amended to reflect the reduced cabotage rights for EU operators in the UK following their usual type of arrival with an inbound international load. This is very much a tidying-up measure, which relates to undertaking cabotage operations when entering the UK without a load. Of those three areas, the area around the smart 2 tachographs is the most significant. The other two are very minor amendments that we are taking this opportunity to make.
Taken as a whole, this instrument will ensure that we have a level playing field for UK operators by ensuring that the haulage access rights for EU operators precisely mirror the rights given to UK operators in the trade and co-operation agreement. On that basis, I beg to move.
Lord Rosser (Lab)
I, too, thank the Minister for her explanation of the purpose and content of these regulations, and for her kind words, as well as those of my noble friend Lord Berkeley, in the previous debate.
We are not opposed to the SI, since the regulations are based on existing requirements made under the trade and co-operation agreement. My noble friend Lord Berkeley has spoken to his amendment to the Motion, which is in line with views expressed by the Secondary Legislation Scrutiny Committee to the effect that:
“The industry has expressed concerns about the cost and availability of the ‘smart tachograph 2’ which is currently in short supply”.
If the Government are opposing my noble friend’s Motion, I assume that in response they will provide evidence of the availability and cost of the new tachograph equipment, what steps they are taking to ensure the required availability of the new tachographs and why they believe that the concerns expressed by my noble friend and the industry will not materialise.
The Explanatory Memorandum reminds us that
“There were availability and timing issues with the implementation of the smart tachograph 1 in June 2019”,
so this is not a new or unexpected issue. The Government’s Explanatory Memorandum states that they came up with a pragmatic solution then, and that:
“If there are difficulties on this occasion, the Department would again work with the Driver and Vehicle Standards Agency and industry to come up with similar pragmatic solutions.”
Would not the best solution, having had prior warning at least three years ago, be to make sure in the intervening period that there would be no similar availability issues? Who makes the new smart tachograph 2, and where? Is it the same organisation that made the smart tachograph 1?
The Explanatory Memorandum also says:
“If there is a supply issue it would be apparent at European level not just in the UK and action at the EU level might be taken.”
That is interesting. The Government went for a hard Brexit to be able to make their own decisions, unencumbered by having to have regard to what the EU thought, wanted or was doing.
The regulations implement parts of the EU-UK Trade and Cooperation Agreement in relation to international road transport provisions in the TCA, including international haulage access to the UK, drivers’ hours rules and the requirement for specific new tachograph equipment—the smart tachograph 2 —in goods vehicles and coaches on international journeys. Some smaller vehicles over 2.5 tonnes, and used on international journeys, are brought into the scope of the drivers’ hours and tachograph rules from July 2026.
On the issue of cost, the Explanatory Memorandum states that
“industry sources have raised concerns about the cost of installing a tachograph for the first time into smaller vehicles by 2026 and the lack of knowledge by some smaller operators of this new requirement.”
The Government’s Explanatory Memorandum is, frankly, a bit dismissive of the concerns about availability and cost, stating that they would not affect the content of this instrument that we are discussing, and that the concerns will be discussed with industry. If that is the case, I hope that it will not be in the same way as the Government clearly have not already.
The new tachograph equipment records a vehicle’s position, including when it crosses borders and when it is loading or unloading. It also allows for the down-loading of data without stopping a vehicle. What will be the cost of this new tachograph equipment? To pursue other points made by my noble friend Lord Berkeley, have the Government assessed what impact these new costs will have on the industry? The impact assessment states:
“There is no, or no significant, impact on business”.
On the basis of what figures and other evidence did the Government reach this conclusion?
One final point that I would like to make relates to what was said when this instrument was debated in the Commons Committee a week ago. We raised the issue of driver welfare. In response, the Minister in the Commons said that it was right to focus on the issue. Continuing, he said that
“the Government have now topped up to £52 million the investment that we have been making in the industry to support better facilities for drivers”.—[Official Report, Commons, Third Delegated Legislation Committee, 1/11/22; col. 6.]
That tends to be the Government’s stock response across the board to any query about inadequate facilities or services—that is, we have spent, or are spending, X millions of pounds. Could I therefore please have a breakdown in writing of exactly what improvements, in what facilities and where, that £52 million is meant to deliver; the extent to which it will or will not actually deliver those intended improvements; and the total amount of money that would need to be invested by the Government to bring the level of all facilities for drivers up to the standard which, presumably, it is intended the £52 million will deliver in the locations in which it is being spent, and for the purposes for which it is being spent?
Baroness Vere of Norbiton (Con)
I am grateful to all noble Lords who took part in this relatively short debate. I will try to answer as many questions as possible, and will certainly write. I am also grateful to the noble Lord, Lord Berkeley, for tabling his amendment; it gives noble Lords the opportunity to delve a little further into some of the issues that these regulations raise.
The trade and co-operation agreement commits the UK to the requirement that small goods vehicles weighing more than 2.5 tonnes used commercially for hire or reward for international journeys need to comply with the EU drivers’ hours rules. I stress that “international journeys” is one of the important factors here, because it means that the requirement does not apply to the vast majority of commercial vehicles, which operate only domestically. The number of smaller goods vehicles operating internationally is very small, and even for HGVs, it is not particularly large; most movement across the short straits, for example, is done by EU hauliers. However, some vehicles will need to comply with the EU drivers’ hours rules and to install and use a smart 2 tachograph from July 2026.
This gives the industry, particularly small vehicles weighing more than 2.5 tonnes, four years to prepare for this transition. It will have known about it for some time and will have four years to think about how the cost can be borne over that period. Regardless of this statutory instrument, UK operators of the vehicles concerned must install a smart 2 tachograph by 2026 if they are to operate legally in the EU. If they fail to do this, they will be subject to roadside stops, fines and other enforcement when abroad. The statutory instrument enables UK enforcement authorities to check and enforce against relative non-UK light goods vehicles—I suspect there will probably be more coming across than there are UK vehicles going abroad.
Noble Lords will remember that we have already discussed in your Lordships’ House the issue for vehicles of more than 2.5 tonnes. It is important that we continue with this. For example, larger vans sometimes come from Poland, Romania and Bulgaria, and they often have sleeping compartments in them. It is therefore very important that UK enforcement authorities are able to check drivers’ hours records contained in those tachographs.
The number of small vehicles that this is likely to cover is very small. There are 554 operator licences in place, but of these licences a total of 1,701 vehicles are authorised for international operation. That is out of a total of nearly 2 million in the UK, so we are talking about 0.09% of small vans, et cetera.
Obviously, the matters under discussion today were already obligations under the trade and co-operation agreement. This is very much a tidying-up exercise to make sure that our legislation is clear for enforcement. We have engaged with industry over a long period, particularly after the TCA was agreed, and therefore it well understands the changes that are coming down the track.
A number of noble Lords asked about awareness campaigns. We are working with the industry constantly on such matters. The traffic commissioner often sends out regulatory updates which advise those with operator licences about these sorts of changes that are coming down the track, and of course we publicise these on GOV.UK.
On impacts and costs, I believe these tachographs are likely to cost around £1,200 each—that is for buying and installation. As I mentioned, that can probably be borne over a number of years, and it is needed only for those vehicles that are travelling internationally.
The noble Baroness, Lady Randerson, and the noble Lord, Lord Berkeley, asked about enforcement. Of course, the DVSA has long been enforcing these matters. It is difficult to separate matters that are raised in this SI from the DVSA’s day-to-day enforcement activities because it is always enforcing against drivers’ hours infringements, whether for UK hauliers or EU hauliers, as well as all other infringements. I will include in my letter to the noble Lord some interesting stats around the amount of enforcement that the DVSA does; I have been incredibly impressed by the work that it does.
The noble Baroness, Lady Randerson, and the noble Lord, Lord Berkeley, both raised cabotage. Your Lordships will recall that, when the Government relaxed the cabotage rules, we had a number of debates in which noble Lords tried to convince me that it was a terrible idea. Eventually, I agreed with them and thought that we should stop doing extended cabotage, because the impact on UK hauliers was quite significant—but only in very localised places, particularly around the short straits. Relaxing cabotage did its thing when we were at the height of the challenges around not having enough HGV drivers, but I believe that we are now right to make sure that regulations in the UK mirror those of the EU, particularly regarding truckers arriving without a load and then going on to do cabotage. That should not be allowed: it is not allowed for UK hauliers and it should not be allowed for EU hauliers.