Draft Heavy Commercial Vehicles in Kent (No. 1) Order 2019

Monday 7th October 2019 Lords Chamber

Motion to Approve

19:15

Moved by

[Baroness Vere of Norbiton]

That the draft Order laid before the House on 4 September be approved.

Relevant document: 61st Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, the draft Heavy Commercial Vehicles in Kent (No. 1) Order 2019 and the Heavy Commercial Vehicles in Kent (No. 2) Order 2019, along with the Heavy Commercial Vehicles in Kent (No. 3) Order 2019, which requires the negative procedure, are a package of measures and it is important that they should be debated together. I am grateful to the House for facilitating this.

As noble Lords will be aware, the Government have been supporting partners in Kent to develop Operation Brock. Brock is a co-ordinated multi-agency response to cross-Channel travel disruption, specifically when capacity for heavy goods vehicles to leave the UK through the Port of Dover or the Channel Tunnel is significantly restricted. We are prepared to use Brock should cross-Channel disruption occur because of the UK’s departure from the EU in a no-deal Brexit, although it could, of course, also be deployed as a result of disruption resulting from bad weather or industrial action. These orders are a vital part of Operation Brock, as they will significantly expand and strengthen the enforcement regime that underpins it.

Operation Brock replaces Operation Stack, and the difference is that it has been specifically designed to keep the M20 motorway in Kent open in both directions, with access to junctions, even in periods of severe and protracted disruption. Operation Brock consists of three phases, the first being a contraflow queuing system on the M20, between junctions 8 near Maidstone and junction 9 near Ashford. The contraflow system enables all other traffic to travel in both directions of the M20 on the London-bound carriageway when cross-Channel heavy goods vehicles are stored on the coast-bound carriageway. When the M20 queuing system—the first phase—is reaching capacity, cross-Channel heavy goods vehicles bound for the Port of Dover would be diverted to Manston Airport. That is the second phase. The third and final phase is the use of the M26. If needed, the M26 can be used as a last resort to store trucks heading to Europe via the Channel Tunnel.

It is important to note that the Kent Resilience Forum, which comprises bodies such as the county council and the police force, is responsible for the Operation Brock plans. Any decisions relating to the activation and timing of the different phases of Operation Brock will be taken by Kent Police as the Gold Command, in consultation with the Kent Resilience Forum.

We are undertaking an extensive communications programme to inform traders and hauliers of new requirements resulting from our departure from the EU. We recognise that if there is widespread non-compliance, it could lead to serious congestion on Kent’s roads. In the summer of 2015, when Operation Stack was deployed for an extended period of time, compliance with the traffic management system was low. Almost a third of cross-Channel heavy goods vehicles avoided the system, causing serious traffic problems on the local road network, with parts of Kent becoming gridlocked. Over the past year, the department has held regular discussions with the Kent Resilience Forum and other stakeholders in Kent. They have been keen to see gaps in the legislative framework addressed and measures to strengthen the enforcement of Brock.

A final consultation on the package of measures was undertaken this summer. This was targeted to affected stakeholders in Kent, such as Kent County Council, the Port of Dover and Eurotunnel, and freight and road haulage associations. As mentioned in the Explanatory Memoranda, the responses received were broadly supportive and provided helpful points of detail that assisted us in drafting the orders, such as refining when the new restrictions and powers should be used, as well as raising wider points on the deployment of Operation Brock, such as on the provision of welfare for truck drivers. I would like to thank everyone who responded.

It is crucial that these instruments are brought into force by 31 October to ensure that the scheme operates as efficiently as possible and to reduce the impact on businesses and local communities in Kent. I am grateful that time has been found for these debates to take place so quickly and for the speed with which the Joint Committee on Statutory Instruments and the Secondary Legislation Select Committee have scrutinised these instruments.

I will now set out what the two orders we are considering today, as well as the associated third order, provide. Under order No. 1, traffic officers in Kent will be able to require the production of documents to establish a vehicle’s destination and readiness to cross the border. If the driver can produce the appropriate documents, they will be given a permit for onward travel. In addition, the order provides powers to direct drivers to proceed to a motorway, removing the vehicle from the local road network, and powers to direct drivers not to proceed to the Channel Tunnel or the Port of Dover except via a specified road or route. Document checks to help make sure that a haulier has the right documents will be carried out on the M20 by temporary traffic officers contracted by, and under the direct supervision of, Highways England, while broader traffic management and enforcement will be dealt with by permanent staff and the police.

This order also sets the amount of the financial penalty deposit for offences relating to Operation Brock, so it may be helpful if I briefly explain the roadside enforcement regime. A driver with a UK address who commits a road traffic offence can be issued with a fixed penalty notice, which must normally be paid within 28 days or it can be enforced by a local magistrates’ court. If a driver does not have a UK address and therefore could avoid that follow-up enforcement action, the police or the Driver and Vehicle Standards Agency—DVSA—can require the immediate payment of a financial penalty deposit. If a driver cannot pay the deposit, their vehicle is immobilised. This regime is used for many road traffic offences and ensures that penalties are paid. The amount of the deposit introduced by the other two instruments for breaching the traffic restrictions or for failing to comply with a traffic officer exercising the new powers is set at £300. The fixed penalty notice amount is also set at £300 by the No. 3 order, to which I will return later.

Order No. 2 prohibits cross-Channel heavy goods vehicles using local roads in Kent other than those on the approved Operation Brock routes. To facilitate traffic flow, the legislation also requires cross-Channel heavy goods vehicles to remain in the nearside—left-hand—lane when using those parts of the Brock routes that are dual carriageway local roads. Appropriate exceptions to this prohibition have been provided after consultation with the Kent Resilience Forum and freight associations. For example, a vehicle on a cross-Channel journey can make a local collection or delivery provided the driver can provide information sufficient to satisfy a constable or traffic officer that the vehicle is being driven on a particular road for that purpose alone.

To complete the whole picture, order No. 3, which has been laid using the negative procedure, prohibits cross-Channel heavy goods vehicles accessing the coast-bound carriageway of the M20 between junctions 9 and 13 unless the driver is displaying a permit. As I said, this permit will be issued in the Brock queue between junctions 8 and 9, enabling a driver to demonstrate that they have followed the approved Brock route and have complied with any border document checks that may be undertaken in the queue. This order also prohibits cross-Channel heavy goods vehicles joining the M20 contraflow between junctions 8 and 9 of the London-bound carriageway. It also sets the amount of the fixed penalty for offences relating to this series of instruments.

We have provided that the new powers and traffic restrictions in the orders will cease to have effect at the end of December 2020. This date coincides with the end of planning permission for the holding of heavy goods vehicles at Manston Airport. Manston is of course an integral part of the Brock system, so this is a suitable and consistent date for them to cease to have effect.

Crucially, these instruments introduce powers to require the production of border documents and the obligation for drivers to comply with any readiness check before using the roads leading to the ports. If the UK leaves the EU without a deal, the UK will become a third country, and the customs authorities in EU member states will introduce EU border and customs rules. For goods to move smoothly across the border, traders will therefore need to complete new processes for customs and provide documentation to their hauliers, who will need it when carrying goods. If drivers try to take goods across to the EU without the right documentation, it is possible that they will not be able to complete their journey. That may be because the UK port turns them away because they do not have the required documentation; for example, some of the customs documentation must be scanned at Eurotunnel before the vehicle can board the train. Or they may be blocked from progressing through an EU port by a member state customs authority; vehicles could be delayed and fined or returned to the UK, or goods could be destroyed. Both scenarios could lead to congestion at UK and EU ports. This could be particularly severe at the Channel ports of Dover and Calais, given the volume of traffic that they handle and the existence of French passport controls on the UK side of the Channel at these ports, and could lead to significant delays on Kent’s road network.

We propose conducting border readiness checks in the Brock queues. In practice, this means that: if Brock M20 is active, HGVs heading to Dover and Eurotunnel will undergo checks on the M20 between junctions 8 and 9; if Brock Manston is active, because congestion at the ports has worsened, Dover-bound heavy goods vehicles will be queued at Manston Airport, where checks will take place, and Eurotunnel-bound heavy goods vehicles will continue to queue on the M20 and be checked there. A haulier who is deemed to be ready to cross the border will be given a permit that allows them to go to the port. Hauliers who try to go to the port without a permit could be stopped, directed to the back of the relevant Brock queue and receive the proposed on-the-spot £300 fine by the police or the DVSA.

These orders are of vital importance to allow sensible traffic management in Kent. It is critical that we demonstrate to the public and to business that Operation Brock will be ready, fully operational and enforceable on day one should it be needed to deal with the impact of cross-Channel disruption. I beg to move.

[Baroness Randerson (LD)]

My Lords, I welcome the fact that there has been local consultation on this. However, my word—this conjures up a depressing and distressing picture of the world we might be entering into, and the people of Kent need to be seriously worried about the way in which this will impinge on their lives.

It is worth noting at this point that the Secondary Legislation Scrutiny Committee drew these orders to our attention, noting that it believed that the use of Section 8 powers of the Traffic Management Act 2004 was a “significant” issue that the House should be aware of.

The Minister referred to the fact that the third order was not before us. I hope she will forgive me but I could not hear her explanation of why we do not have it. However, I want to hear clearly from her that the third order is being made at the same time. Could she also please address the fact that, as part of this whole package of activity, there are three special development orders which apply to Manston Airport, Waterbrook in Ashford, and car park D at Ebbsfleet station? They all allow the use of land for the stationing of vehicles, for facilities for drivers and for the pre-processing of papers required in order to export goods if there is no deal. As they are an intrinsic part of the package—although I realise that they will not be part of the Minister’s responsibilities—I think it is important that we know how that will all fit together and when all the information will have come to us that needs to.

19:30

The picture that the orders conjure up is of martial law for traffic and of roadblocks on the roads of Kent. I understand the attempt to avoid chaos at the ports. In 2015, the impact that chaos at the ports had on the whole of Kent was obvious, way beyond the motorways. I fear that unaddressed concerns here could lead to the disruption on the motorways spreading to other roads in Kent. The whole of Kent traffic will essentially be under emergency control at such times.

The power to direct vehicles is fine, but the inspection of documents is not as easy as you might think. If we leave with no deal, dozens of technical documents will have to be considered. Prior to the establishment of the single market, you needed dozens of documents to get a lorry load of goods from one country to another. The whole supply chain has become much more complex these days. An Amazon lorry will have 1,000 different consignments within it, which could well need separate and individual pieces of paper. Traffic police are traffic police; they are not customs experts. What training will be given to the police to ensure that they are customs-ready?

The Minister is making a face at me to suggest that I am not raising realistic concerns, but they have been raised with me by people in the industry who regard them as legitimate, and I think the Government need to take them into account. If you have a lorry load of widgets going to Romania, how will you know that they have the right set of documents for that trip?

It is also important to remember that 80% of lorries in that area are driven by foreign nationals. The Government have gone to the trouble of saying that they will produce documentation and information in 11 different languages, but our police do not all speak those 11 languages, so what about translation issues?

The Minister referred to the contraflow on the M20. I take this opportunity to raise the inconvenience of that contraflow on a permanent basis and ask her how long she thinks that will be the Government’s solution to potential disruption in the area. I had the unfortunate experience of having to drive along that contraflow in the summer—15 miles of white-knuckle ride with two narrow lanes of traffic, nowhere for traffic when it breaks down and extremely large lorries overtaking each other on those two lanes. I know that those who use that route regularly find it a very disconcerting journey. If that is the Government’s permanent response for that area of Kent, something needs to be done to widen the lanes.

Why is there no impact assessment? The Explanatory Memorandum states that the order is not expected to impact on the private, public or voluntary sectors. I would say that it will impact on people throughout Kent, and that there should be an impact assessment because of the effect on Kent’s economy.

Many drivers on return trips will not be carrying documents because they are not carrying goods, but there will still be lorries waiting in a long queue to get through the ports. How will the Government deal with empty lorries? Will there be a different process for them?

Given the high percentage of foreign drivers to which I referred earlier, what are the Government doing—beyond translation into 11 different languages—to ensure that the information about what is to happen is available not just to hauliers but to the manufacturers and companies that provide them with the goods? They need to be aware that their hauliers are likely to be held up in this way. If this is to work, it is very important that the lorry drivers are not put under unrealistic pressure by their employers. They must not be made to feel under pressure to complete their journeys more quickly than they are able.

Finally, I ask the Minister about local lorries. The second order specifies that drivers making local collections and deliveries will have to supply evidence. If you are, let us say, taking materials from one building site to another, there is no reason why you should have any documentation with you. It will be a real issue for local lorries to have to provide sufficient evidence to prove that they are not on a longer journey and intent on going abroad. The impact of that is that all lorries in Kent will have to carry significant legal documentation at all times to prove that they are complying with those regulations.

[Viscount Hanworth (Lab)]

My Lords, the regulations on custom safety and security, which we have already discussed, have arisen from HMRC’s assessment that the haulage industry and ferry operators will be unable to meet the new requirements that will be imposed on imports and exports in the event of our leaving the EU by 31 October. The regulations will give them leave to submit the necessary safety and security declarations with a delay of up to 12 months.

Of course, these easements are on the side of the UK, and there can be no presumption that they would be met by similar easements on the side of the European Union—a point made persistently by my noble friend Lord Tunnicliffe—but perhaps it is now more interesting to consider the associated statutory instruments that concern the heavy goods vehicles that carry our exports and imports to and from the Channel ports. Some 90% of this traffic passes through the Port of Dover. The roads leading to the port would be subject to severe congestion in the event of a hard border with the European Union. The statutory instruments speak of the likelihood of utter chaos. They are a belated wake-up call, albeit that warnings arose months if not years ago. An indication of what is in store arose as long ago as 2015, when the French ports were beset by strikes. Then, there were tailbacks on Kentish roads of 12 miles or more. These circumstances were met by a set of powers and provisions given to the transport authorities that were described as Operation Stack. The controls were widely evaded, as we have heard, and huge costs were entailed.

To meet the eventuality of a hard border with the European Union, much more extreme powers are now envisaged. The new enhanced powers that supersede those of Operation Stack are known collectively as Operation Brock. Tailbacks much longer than those of 2015 will occur. I talk of a “hard border” because that is what we must envisage in Ireland in the event of the Brexit deal being proposed by the Government, notwithstanding their protestations to the contrary. In this case, logistical difficulties of the sort I have been describing will affect the Irish border. We must also contemplate extreme political difficulties of a sort familiar to those such as me, who witnessed them directly in the 1970s and 1980s, but which are being wilfully ignored by many of the party in power.

[Lord Rosser (Lab)]

I thank the Minister for setting out the reasons for and intended objectives of these two statutory instruments. As has been said, the department laid three instruments, each with an Explanatory Memorandum. The first is a draft affirmative instrument, which confers new powers on traffic officers that will enable them to identify cross-Channel heavy goods vehicles and control their movements in Kent. It also makes provisions relating to enforcement. The second order is also an affirmative instrument and allows for the use of such vehicles to be restricted to the motorway network and other approved routes by prohibiting access to local roads in Kent. The third order follows the negative procedure and allows for the use of such vehicles on the M20 motorway in Kent to be restricted, and makes other provision to facilitate more effective enforcement.

As the Minister has said, these three instruments form a package that allows for the movement of cross-Channel heavy goods vehicles in Kent to be regulated during periods of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. As has been said, the DfT has indicated that it,

“has worked closely with the Kent Resilience Forum on developing traffic management plans, known as Operation Brock, to be used as a contingency in the event of severe disruption to travel via the Channel Tunnel at Folkestone and the Port of Dover. These instruments support Operation Brock”,

which has been designed to ensure that the M20 motorway in Kent will be kept open and traffic will continue to flow in both directions. Operation Brock is intended as a replacement for Operation Stack during periods of severe and protracted disruption. Operation Stack did not prove an unqualified success, hence the new Operation Brock.

As I have said, the first draft order enables the movement of cross-Channel heavy goods vehicles in Kent to be controlled during periods of severe disruption by conferring new powers on traffic officers. These new powers will be used to tackle non-compliance with the scheme, which would cause or contribute to severe traffic congestion. The new powers are conferred under Section 8 of the Traffic Management Act 2004. Apparently, the draft No. 1 order is the first use of the Section 8 power. As has been indicated, these powers will enable traffic officers to detect and direct vehicles that are not compliant with the traffic restrictions imposed by the second and third orders.

The Explanatory Memorandum notes that, in particular, traffic officers will be able to require the production of documents to establish a vehicle’s destination and to demonstrate readiness to export goods. Powers to direct the driver of a heavy goods vehicle in Kent to proceed to a specified motorway in Kent, or to direct such a driver not to proceed to the Channel Tunnel or Port of Dover except via a specified route or road, are also provided to traffic officers. This order also creates an offence of failing to comply with a traffic officer exercising such powers. The noble Baroness, Lady Randerson, has already said that in many ways, it is difficult to understand the full potential consequences of these orders on the movement of goods and traffic in Kent.

19:45

Traffic officers will be deployed to ensure compliance with Operation Brock, but I am not clear—and would be grateful if the Minister could clarify—how many additional traffic officers there are going to be. I think I am right in saying that the order enables people carrying out existing roles to be designated traffic officers. I do not know in how many circumstances it is envisaged that traffic officers will be created in this way and how many new jobs there are going to be, in reality. So how many traffic officers will be needed? Have they already been recruited or so designated? Will these be permanent posts or short-term posts and, if so, for how long will those contracts last?

As the noble Baroness, Lady Randerson, has said, the Explanatory Memorandum also indicates that:

“It would not be an offence for a driver to fail to produce documents if such documents were not carried, which would be a common occurrence as many vehicles leaving the United Kingdom on the ‘return leg’ of a journey do not carry goods.”

I understand that, but I think traffic officers will be able to require the production of documents to establish a vehicle’s destination and demonstrate readiness to export goods. Would a vehicle that was leaving the UK on the return leg and not carrying goods still be required to have a document setting out its destination to establish where it was going? If that were the case, would the traffic officer have some responsibility for checking that a driver without any goods nevertheless had a document indicating the destination of that vehicle? The inference is that the document with the destination would not be required if the vehicle were not carrying goods, but I would be grateful if that could be clarified. Will the traffic officer have power to check that a vehicle is not carrying goods? Presumably, it will not be good enough for the driver of a vehicle to announce, “I haven’t got any goods on the vehicle”, and for that just to be accepted, when there might be goods on the vehicle. Could that point be clarified as well?

The amount of the financial penalty deposit for failing to comply with a traffic officer exercising new powers under this order is set at £300. Is that £300 for each failure to comply or breach, or is it a total financial penalty for one or more breaches at the same time? The No. 3 order—the one on a negative basis—prohibits such vehicles from accessing the coast-bound carriageway of the M20 motorway between junctions 9 and 13 unless the driver has complied with checks of border documents and is displaying a permit issued after using an approved route. The noble Baroness, Lady Randerson, has already referred to the considerable complexity of the documents that that vehicle may require. I have no doubt that the Minister will respond to that point.

The No. 2 order before us supports Operation Brock by restricting access to the local road network. The paragraph in the Explanatory Memorandum covering consultation states:

“A good level of response was received … Responses were broadly supportive of the proposals to provide additional powers and traffic restrictions to ensure compliance with Operation Brock”.

However, the department notes:

“Concerns were expressed as to the need to provide clarity on what being ‘border ready’ involves”,

as I understand it, in relation to documentation. That clarity was being sought,

“so that hauliers are not unfairly penalised. The Government will clarify this in the development of communications in preparation for the United Kingdom’s departure from the European Union on 31st October”.

Has that clarity now been provided or is it still awaited, and if it has been provided, are the documents providing that clarity in the public domain and will we be able to see copies of them?

Going on with the issue of communications, the Explanatory Memorandum accompanying the first draft order notes that the department will,

“undertake extensive communications activity from September onwards”,

to make persons who could be affected by this series of instruments aware of their impact before they come into force. I am not sure whether those documents are the same ones about providing clarity of what being border ready involves or whether they are separate documents, but when the Secondary Legislation Scrutiny Committee asked the DfT how the department would ensure that UK and non-UK hauliers or persons affected by these instruments would be made aware of their impact before they came into force, the DfT said in response that it would be,

“producing guidance for hauliers setting out what the legislation entails and what happens if they fail to comply. The guidance will be made available in 11 languages and will be published on gov.uk as soon as possible before 31st October”.

Once again, given that I am not sure whether there are two sets of documents or only one, has that guidance been published, who has copies of it, and are they available to us?

In its reply, the department also said that it would,

“work with other key stakeholders such as the Road Haulage Association and Freight Transport Association to help them disseminate the guidance to their members”.

Does the reference to “key stakeholders” include trade unions representing drivers? It seems to me that drivers might be quite interested to know what documents they will be expected to have and what clarity the Government are offering on what the procedures should be. Once again, it would be helpful if the Minister is able to clarify that point.

I think that I am right in saying that the SIs do not specifically reference leaving the EU without a deal. Can the Minister confirm whether the Government think that it is more likely for Operation Brock to be initiated if we leave the EU with a deal or more likely for it to be initiated if we leave without a deal? What do the Government consider “severe disruption” to look like? I appreciate that what is being said is that in effect that will be a decision for Gold Command, but presumably the Government have some idea of what they mean by severe disruption when they use the term in a statutory instrument. It would be helpful to have more clarity on that point.

I come back to the point about whether this relates to both leaving without a deal and leaving with a deal. Obviously, the further question is: can the powers be used if we get a deal or are they only in relation to no deal? Do some of the powers go further than the existing powers because they refer to disruption being caused by “severe weather” or “strike action”? The powers in these orders could be implemented or introduced if there was severe weather or strike action took place, and at the end the phrase creeps in about disruption caused by not having a deal with the EU or the consequences presumably also of having an agreed deal because that too may cause some difficulties. Is this an extension of the existing powers? Do the powers in these statutory instruments apply at the present time in relation to severe weather or strike action, because they are being put forward in relation to leaving the EU on 31 October, but two items are referred to which have applied before that date and could apply after it irrespective of the kind of deal we have? Is this in fact bringing powers in through the back door that do not already exist as far as this SI is concerned? It would be helpful to have clarity on that.

I think that I am right in saying that one of the Transport Ministers—I think it was George Freeman—said that the Government’s planning assumption was that no-deal disruption would roughly halve the traffic able to pass through Britain’s main trading link for three months. What do the Government expect will happen after three months in the light of his comment? Could severe disruption last for much longer than three months in Kent, or are the Government telling us that severe disruption would last only for three months? What would be the cost to the UK economy as well as the local economy in Kent for every week that Operation Brock is operational? Do the Government envisage a scenario where these powers would need to be extended beyond the end of 2020?

The Explanatory Memorandum also states that there were “Wider concerns” about the welfare of hauliers during Operation Brock, and I have to say that those concerns are shared on this side of the House. One of the interpretations of hauliers’ welfare could mean, for example, the provision of refreshments, toilet facilities and things of that nature in the event of severe traffic congestion and lorries not being able to move. However, hauliers’ welfare could also be impacted by the directive on working hours. Can the Government explain how the directive will work during periods of severe disruption? Am I right that, while a driver sits in traffic, those hours still count as work hours and that they are required to take a 45-minute break after 4.5 hours of driving? How can they take breaks if they are stuck in traffic and are still responsible for their vehicles, which may be moving, albeit at a very slow pace?

There are of course certain circumstances in which the hours under the working hours directive can be suspended. As I understand it, they can be suspended in emergency events. Would serious disruption defined by Operation Brock qualify as an emergency event? Do the Government expect the working hours directive to be suspended during Operation Brock? Have the working hours under the directive ever been suspended before as a result of either severe weather or industrial action, which as I have said are referred to in this SI? Bearing in mind the possible impact on working hours, which is obviously subject to the answers I am given, can I have an assurance that in the consultation that has taken place, the relevant trade unions representing drivers have been consulted, because if there is an impact on working hours, I think that such consultation should have taken place? However, I have not detected any reference to it in the Explanatory Memorandum. Perhaps I may have the Government’s response to that point.

Finally, on the question of costs, the Explanatory Memorandum states that there will be no “lasting impact on business” from the measures contained in this series of instruments and that they would be used only during temporary activations of Operation Brock. But bear in mind that traffic officers will now have the power to direct traffic to different routes from the motorway, which would most probably take longer than usual. A longer route, and even traffic on the new route, will surely amount to additional short and medium-term costs. For example, some of the goods carried by heavy goods vehicles can be time-sensitive, such as food and medicines. Do the Government accept that there will be short and medium-term costs? I repeat a question I have already hinted at: have the Government estimated what these costs are? This comes back to the point that the noble Baroness, Lady Randerson, made: why has an impact assessment not been published? Surely it is stretching the grounds of credibility a bit to suggest that these orders will not have some impact on costs as far as businesses are concerned.

Those are my points on these orders. Like the noble Baroness, Lady Randerson, and my noble friend Lord Hanworth, I look forward to the Minister’s response.

20:00

[Baroness Vere of Norbiton]

I thank all noble Lords who have contributed to a very thorough debate today. A number of issues have been raised. I will do my absolute utmost to cover as many issues as I possibly can, but of course I will write, as I am already fairly sure that there are certain issues I cannot cover in great detail.

I start with the issues raised by the noble Baroness, Lady Randerson. She started by painting a rather grim picture that this is some sort of a takeover of Kent by the Government. It certainly is not. She mentioned that there has been local consultation, but the request for these powers very much came from the local resilience forum.

[Baroness Randerson]

I specifically welcomed the fact that there had been local consultation. I am afraid the Minister misheard me.

[Baroness Vere of Norbiton]

I am sorry if I phrased that incorrectly. I know that the noble Baroness welcomed the local consultation. The point I was trying to make is that this was more than the Government just going to Kent and saying, “What do you think of this?”. This was more about Kent saying, “Actually, given what happened with Operation Stack, we’d really like these powers, and if the Government could sort it for us, that would be great”. So that is what the Government are trying to do today. As has been mentioned by a number of noble Lords, these powers are available in the event that there is congestion at the border caused by a no-deal Brexit, but they can also be used for bad weather and/or industrial action.

The noble Viscount, Lord Hanworth, noted the use of Operation Stack in 2015. I, too, was unfortunate enough to drive through Kent at the time, and it was a nightmare. It caused great trouble, so we are well aware of the issues that can happen, and they do not have to be Brexit-related. Having said that, however, these powers are limited to 31 December 2020. That is right, in that we would not want to extend powers then leave them hanging for a long period of time if they are not needed in future. Certainly, should we or a Government in the future decide that they are useful and benefit the people of Kent, I would expect similar legislation to be passed again in future, once these powers have fallen away on 31 December 2020.

As I have mentioned, these powers are very much for the benefit of businesses, residents and people who—like me—travel through Kent. They are being made under a variety of different Acts, which is why—I am sure noble Lords understand—one is draft affirmative, one is made affirmative and one is negative. They stem from different parts of our legislative scope and the different things we have available to us. They are a series of instruments and will not come into effect without Parliament’s approval, so the negative does not come into effect on its own.

The noble Baroness, Lady Randerson, mentioned the SDOs and referred to three different sites. The SDOs are in place for Manston, which has been in place since January 2019; Ebbsfleet, which has been in place since September 2019 and will be used as an HMRC transit site; and Ashford, which has been in place since September 2019 and is an HMRC transit site and turnback site so that HGVs that arrival at Eurotunnel and are found to be not compliant will have somewhere they can go that will have facilities for them to try to get themselves compliant, so that they can be border-ready and can head across to the border.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, mentioned empty lorries. These will be treated the same as other lorries. I will be honest with noble Lords: we looked at whether we could treat empty lorries separately, but there are various issues around, for example, packaging. Some packaging, although it is empty, must have the relevant certification with it because obviously there is no way of making sure that that packaging is empty. Therefore things such as beer kegs need some customs documentation. An empty lorry that does not carry beer kegs will not need it.

This brings us on to the general discussion about the documentation needed, who is checking it and how qualified these people are. There are levels—layers—to this entire system. The traffic officers, whether they be temporary or permanent, will look for the existence of certain documents. This is not a shadow French or EU customs operation; they are looking for the existence of the documents. If those documents exist, they assume that that HGV is compliant; it will get a permit and continue. They do not have to be experts. However, I take the point: training is under way and is being done in order that the traffic officers, whether permanent or temporary, recognise the documents that we will require when they get to the border.

The classes of documents we are looking for are fairly straightforward: for travel documents, it is a passport or ID card, and for customs, it is the movement reference number from two different types of document. Only in the case of phytosanitary certificates, export health certificates or export licences for chemicals and drugs will we look for additional documents. The training is under way and will continue. To do the checks, the traffic officers will have screens. It is done online. The software is translated into 11 different languages so that if the traffic officer speaks to somebody who does not speak English but perhaps speaks one of the languages in front of them, we can make sure that the person has the documents and can be on their way with a permit as quickly as possible. To help noble Lords’ understanding, the traffic officers are doing the checks; they are also responsible for traffic movements. We are looking to the police for enforcement, not checks, and to the DVSA, which has similar powers.

The noble Baroness, Lady Randerson, went on to talk about the contraflow. We are very seized of the issue that the contraflow brings to the M20. We completely understand that it is not a permanent solution. I can give the noble Baroness some hope. I have seen some proposals for what the permanent solution may be. We are getting to the bottom of them, and I very much hope that in the not too distant future we will be able to share with noble Lords what the permanent solution will be. I do not believe it will be as terrifying—as the noble Baroness mentioned—as driving down that stretch of the M20 can be at this moment in time.

Turning to the local lorries, I suppose there are two issues here. First, there are lorries that need to do a delivery or pick-up within Kent before they proceed to the border. I would expect them to have all the appropriate documents because they are heading to the border. In all this there is an overarching assessment of reasonableness. They should have the right sort of documents. We spoke to the Kent Resilience Forum about the other local lorries, and the police are well aware of the rat-runs that HGVs trying to get to the border might use. They know where people are going. They will not be covering every single road in Kent. Most of the local traders in Kent will be able to get from A to B with no trouble. Many noble Lords have recognised that a lot of these hauliers—well over 80% —will be operating businesses based out of the EU. I suggest to noble Lords that the number plate might be a bit of a giveaway anyway, but of course it is clearly not 100% fool-proof.

I turn to the impact assessment or lack thereof. A de minimis assessment was undertaken with these SIs about the actual or potential imposition of this contingency plan. We followed the approach agreed with Defra advice. The more general issue of potential disruption in Kent in the event of no deal has been assessed by the Kent Resilience Forum with input from the border delivery group and DfT.

I turn to points raised by the noble Lord, Lord Rosser. I have what I hope are some helpful numbers that will put his mind at rest about the additional staff. If operational, it is true that this will need a significant number, but remember that these powers are only needed if Operation Brock is in. We are probably looking at 125 temporary traffic officers. They will do the traffic checks on the M20 and will be on three-month contracts extendable by three months. We will be looking at about 130 DVSA enforcement staff, 60 of whom will come from outside Kent. There will 120 Highways England traffic officers. There will be 350 police officers, 160 of whom will come from outside Kent, given the very well understood structures that exist for when police forces need to help one another. Any deployment from outside the Kent area will be time limited. Appropriate arrangements will be put in place to ensure that roles are covered as people move to different responsibilities.

[Lord Rosser]

The Minister made reference to 125 traffic officers and three-month contracts that could be extended. Does that indicate that problems may arise immediately after 31 October that the Government think will diminish—not disappear—sufficiently over the three-month period so as to not need 125 traffic officers?

[Baroness Vere of Norbiton]

The noble Lord is right: if there are impacts from a no-deal Brexit, we expect them to fall away. The issue here is the readiness of traders and hauliers—the former obviously being more important, as they are responsible for the documentation. If a haulier is caught by this system and has to go back to the end of the queue—for not being trader-ready and not having ready the right documents—he or she is unlikely to do that again. I suspect not only that the jungle drums between the different hauliers will be saying, “You need to have your documents ready if you’re going to get out of the UK in one piece”, but that, because of the work that we are doing with traders to make sure that they are ready as possible, we will see a significant decrease over the three months in the number of hauliers approaching the border who are not ready.

The noble Lord, Lord Rosser, asked how the £300 penalty was built up. He was quite right: it is for every contravention for which that person is caught. However, again there would be a test of reasonableness. If a haulier was consistently breaching the regulations and taking routes that they should not, I suspect that being penalised many times would probably be appropriate, because we have to stop the behaviour. At the end of the day, the hauliers do not want to get to the border without being border ready—so, to a certain extent, this is for their benefit. When the noble Lord asked whether one could look in the back of empty lorries et cetera, it is for the haulier to benefit from getting the permit, so that they can crack on and get to where they want to be. It is not really in their interests to act against what the traffic officers are trying to do.

I turn to communications and guidance. We are in an active programme of communications at this time. As noble Lords will know, communications with traders have already started, as have those with hauliers. We have pop-up stands throughout the country encouraging hauliers to get ready for a potential no-deal exit on 31 October. Guidance for the hauliers will be available shortly, subject to these SIs going through—once that happens, guidance will be available. It will be sent to the haulage associations, with whom we have a very good relationship. As the noble Lord mentioned, we will send it to unions as well. I am not sure of the extent to which this is a highly unionised industry. To the extent that it is, we will make sure that the unions have those documents.

On that subject, we have not specifically spoken to unions about this. We have a good relationship with Unite, for example. In normal circumstances, we find that it generally comes to us if it has specific concerns—we have not heard about any on this. However, at the noble Lord’s prompting, we will make sure that they are looped into the information as it is available.

20:15

[Lord Rosser]

I appreciate that the Minister has not had a chance to get around to answering this point. I am sure that there are a number of areas that unions representing drivers will be interested in. I am sure that they would be interested if it turned out that the working time directive went for a fourpenny one—to use that expression—immediately the severe disruption powers were activated. If the Government’s answer is that that will be the situation, have the trade unions been advised of that?

[Baroness Vere of Norbiton]

It is not the Government’s intention to suspend the regulations on drivers’ hours or any other regulations around working time. We would do it only if we needed to. The noble Lord asked whether they had been suspended before; I am not aware that they have been. I think the issue arises where the rest times for hauliers are often required to be spent outside of the cab et cetera. When they are in a long queue of trucks that is not moving, they will have the opportunity to get out of their cab—although I understand that it might be winter and they may not want to.

[Lord Rosser]

The context in which I asked whether the powers had been used before—bearing in mind that there is now a reference to severe weather or industrial actions—was about whether they had been used in the context of severe weather or industrial action. If they have not, the power in these SIs is not related purely to Brexit; it is, in fact, a new provision being brought in. In other words, you can use these powers if you want to, in relation to severe weather or industrial action. I do not think that the Minister understands my point. The Government have said that these powers to suspend the working time directive have not been used before. But we have a reference here to the possibility of them being suspended in relation to severe weather or industrial action—which is not something necessarily related to Brexit.

[Baroness Vere of Norbiton]

I am doing my best, but I might have to go back through Hansard to try to understand the noble Lord’s exact point. To my mind there are two separate issues here. The first is whether these powers—the operation block enforcement powers—can be used in circumstances of industrial action or severe weather: yes, they can. Secondly, and entirely separately, there is the issue that we might get to whereby drivers’ hours or working time directive regulations might need to be suspended. We do not want that to happen, obviously. I thought that the noble Lord had asked whether that had happened before; I am not aware that is has and will have to write to the noble Lord on that. In doing so, I will ask whether those circumstances arose.

I believe that I have covered as much as I am able to today. I will certainly go back through the notes—

[Viscount Hanworth]

Are the Government confident that they will be able to recruit a sufficient number of officers, with a sufficient commitment to their duties, if they are going to offer only a three-month contract with a possible extension? It strikes me that rather few people would be prepared to accept those terms of employment.

[Baroness Vere of Norbiton]

The noble Viscount raises an important point, but those people are already recruited. Although it sounds like a huge and responsible role, the temporary traffic officers will have a very specific role—which is for the M20, to do the border-readiness checks. They are recruited and are undergoing training.

[Baroness Randerson]

I would like to press the Minister for a little more information about what information is currently on the GOV.UK website to help hauliers. The Minister referred to warnings about getting ready for a no-deal Brexit. That brought to mind those irritating adverts on the television that tell you absolutely nothing; they tell you to get ready for a no-deal Brexit but do not say what you should be doing. We need much more precision in this case. Is that information on GOV.UK already, so that hauliers and their employers can look at it?

[Baroness Vere of Norbiton]

I thank the noble Baroness for reminding me to go back to this. I know that I am not supposed to have extra documents in the Chamber, but I have one here. There is a document, which has been available for quite some time, and there is also a shortened version. This document, Transporting Goods Between the UK and EU in a No-deal Brexit: Guidance for Hauliers, is available on pop-up stands as well as on GOV.UK. On the basis of my answers to these questions, and that I will write, I hope noble Lords will see fit to approve these regulations.

Motion agreed.