Community Drivers’ Hours Offences (Enforcement) Regulations 2017

Baroness Chisholm of Owlpen Excerpts

Wednesday 29th November 2017 Grand Committee

Moved by

[Baroness Chisholm of Owlpen]

That the Grand Committee do consider the Community Drivers’ Hours Offences (Enforcement) Regulations 2017.

[Baroness Chisholm of Owlpen (Con)]

My Lords, these regulations are being made in order to enhance the enforcement agencies’ powers in respect of the drivers’ hours rules. For the benefit of your Lordships who may not be aware I shall make a few introductory remarks about those rules.

The drivers’ hours rules are central to keeping our roads safe. They set maximum driving times and minimum break and rest times for most commercial drivers of both lorries and coaches. For example, the rules mean that after four and a half hours driving, a driver must take a 45-minute break. Daily driving time is normally limited to nine hours.

The consequences of drivers working when fatigued can, of course, be catastrophic, so although we can be pleased to note that road accidents involving coaches and lorries have been reducing over time, we must not be complacent. The rules are enforced by the Driver and Vehicle Standards Agency and the police at targeted roadside checks and also by visiting operators’ premises. Most breaches of the rules are swiftly identified and efficiently dealt with by means of fixed financial penalties. More serious breaches are referred to the traffic commissioners or lead to prosecution.

These regulations extend the use of fixed financial penalties so that they are available for certain drivers’ hours offences committed within 28 days of a drivers’ hours compliance check. At present, this fixed-penalty approach can be taken only for current offences—those that are being committed at the time of the check. But the tachograph, the device which is used to check compliance with the rules, has a historical memory. These “on-the-record” or “historical” drivers’ hours offences can be sanctioned at present, but only through court prosecution. This is time consuming and costly, as your Lordships can imagine, both for the enforcement agencies and for the operator and driver involved.

It creates a particular difficulty in respect of non-UK drivers, which is perhaps where the biggest consequence of this change will be. Although they may be issued with court summons, regrettably they do not generally respond to them. It is costly and may be impracticable to arrest them and hold them in police custody. The regulations will enable the enforcement agencies to issue fixed financial penalties for infringements of the drivers’ hours rules by non-UK and UK drivers committed in the 28 days preceding a compliance check. The regulations will also bring the UK into line with several other European countries, including France and Germany, which already issue on-the-spot penalties for historical drivers’ hours offences. In addition, it will save the enforcement agencies time and money by giving them the option of taking fewer cases to court.

The new powers will not be used indiscriminately. The DVSA intends to carefully consider all relevant circumstances and the gravity of the offence before taking any action and will exercise its discretion when dealing with minor infringements. My department undertook a formal consultation on these changes. They received broad support from respondents, including trade associations. I beg to move.

[Baroness Randerson (LD)]

My Lords, these regulations relate to on-the-spot fines for historical road traffic offences—that is, offences committed within 28 days prior to the driver being stopped. Drivers’ hours legislation is an important aspect of road safety standards in this country, as well as, of course, an important aspect of the welfare of the drivers concerned. These regulations apply to the so-called historical offences committed outside the UK in other EU member states and some third-party countries.

A very high percentage of freight traffic on our roads is driven by foreign drivers. Many of them are actually EU citizens resident in this country and working for UK companies here and abroad, but many of them are foreign drivers who have simply come to the UK to deliver and collect goods. Therefore, the future co-ordination and harmonisation with the rest of the EU is vital to our road safety in future—unless of course we are going to hermetically seal our borders, as some Brexit supporters seem keen to do.

I particularly want to ask the Minister about Northern Ireland, because on the island of Ireland, drivers cross all the time from one side of the border to the other. They do not even notice that they have crossed that border in many cases. It happens much more frequently and much less formally than in the rest of the UK because that border is invisible. There has been a great deal of discussion about future customs checks, but clearly the harmonisation of drivers’ hours is also vital. Therefore, do the Government intend to keep in step with EU rules on this, now and in future—deal or no deal? It is not just a case of whether the Government intend to accept the EU rules as they currently stand. The Government need to commit to keeping the EU rules as they are amended and changed over time, which happens fairly regularly. Unless Britain is entirely in step with the EU, now and in perpetuity, there will be huge problems for drivers in Ireland. In effect, a border will be created.

--- Later in debate ---

[Lord Rosser (Lab)]

I, too, thank the Minister for explaining the purpose and content of the SI. We certainly support its objectives. I have some points to raise about the Explanatory Note and Explanatory Memorandum. I would be more than happy to have a written reply if the Minister is not in a position to respond to some or all of them now.

At least one or two of the points are probably driven as much by ignorance on my part as anything else. Can I clarify to whom the order applies? Is it only to,

“drivers of specified vehicles undertaking international carriage of goods and passengers”,

as referred to in the first paragraph of the Explanatory Note at the end of the draft statutory instrument, or does the order apply to,

“drivers engaged in the carriage of goods and passengers by road”

as referred to in paragraph 4.1 of the Explanatory Memorandum—apparently without any stipulation that it applies only to the international carriage of goods and passengers?

What is the position of drivers of vehicles undertaking national as opposed to international carriage of goods and passengers? Are they covered by similar requirements about periods of driving rests and breaks and can they already be issued with a fixed penalty notice for an offence suspected of being committed within 28 days prior to detection, or only one committed at the time they are detected?

I ask that point to clarify whether the order does or does not mean that we are treating drivers of vehicles involved in international carriage of goods and passengers differently from those involved in national carriage of goods and passengers in this country in respect of fixed penalty notices referred to in the order.

The Explanatory Memorandum refers in paragraph 2.1 to “on-the-spot” penalties being,

“available to enforcement officers when taking action in respect of both UK and non-UK drivers when they detect an infringement of certain Community drivers’ hours rules out of GB”.

In that context, I also raise a point that has just been raised by my noble friend Lord Jones: if a non-UK driver does not pay their fixed penalty notice on the spot for an offence suspected to have been committed within 28 days prior to detection, what does present evidence available indicate is the likelihood of that fine being paid in whole, and what are the costs of securing payment of such outstanding fines?

The Explanatory Memorandum does not give any indication of the likely number of cases that will no longer be coming to court, although it does refer to court proceedings being “costly and relatively cumbersome”. How many cases will no longer be coming to court that currently do so, as a result of the order, and at what saving? Likewise, how many more offences is it considered will be pursued through fixed penalty notices now enabled under this order which would not have been pursued through court proceedings due to their being “costly and relatively cumbersome”?

Paragraph 8.2 of the Explanatory Memorandum refers to the assurances being sought by two trade associations. One of them appears to be that,

“enforcement officers would focus on serious offences and not penalise all minor offences”.

My comment relates to all the issues on which assurances were being sought, as referred to in paragraph 8.2. I would like to know what way forward was agreed to in follow-up meetings. All that is said in paragraph 8.2 is that:

“These concerns were addressed and a way forward agreed in follow-up meetings”.


What was the way forward agreed and what are the assurances that have been given in relation to the issues raised by the two trade associations and set out in paragraph 8.2? I also ask the question that was raised by the noble Baroness, Lady Randerson—in considerably more detail than I intend to do, since I do not wish to repeat points that she has made. I, too, would like to know, since the order apparently does not apply to Northern Ireland, what is—and what will be—the position in Northern Ireland in relation to the issues addressed by this order and, indeed, to the rather wider issues referred to by the noble Baroness, Lady Randerson, in her comments?

As I said at the beginning, I am more than happy if the Minister wishes to send a written response to the questions that I have raised.

[Baroness Chisholm of Owlpen]

I thank noble Lords for all their questions—at least I think I thank them. Various points were made about Ireland. Obviously, goods will be able to travel easily in Europe after we leave the EU; that is our intention. Businesses and consumers across Europe would expect both sides in negotiations to work to this end and there is no good reason why suitable arrangements cannot be negotiated.

The noble Lord, Lord Rosser, mentioned Northern Ireland and its rules and regulations. They are devolved and Northern Ireland has its own rules on tachographs. On what will happen post Brexit, we will continue to work with the industry to ensure that the interests of the road haulage sector are properly reflected in the negotiations during our withdrawal from the EU.

As for how many more penalties are expected to be issued, based on last year’s figures it is estimated that fixed penalties for drivers’ hours and tachograph offences could increase from around 10,000 to at least 14,000 per annum. Of course, on-the-spot checks and fines mean that we are saving quite a lot in court procedures, which are very time-consuming and much more expensive. An official record is not kept on how many non-UK offenders are given a warning or are fined but, since December 2013, the DVSA has recorded giving 273 warnings. However, as the recording of verbal warnings is not mandatory, the figure is likely to be a lot higher. As I said in my opening speech, enforcement officers will be sensitive as to how they give these fines and will listen to what the drivers have to say and to their explanations for what they are doing. If the fine is not paid on the spot, enforcement officers can immobilise the vehicle until payment is made.

I think that I have answered all the questions, so all I need to say is that the new powers will make a big difference to how we collect these fines. The drivers’ hours rules are at the heart of the regulatory regime governing the use of heavy commercial vehicles. They are in place to prevent drivers driving when tired and putting themselves and other road users at risk. It is important that our enforcement of them is as good as it can be, both to deter wrongdoing in the first place and to take action efficiently and effectively when it does arise.

I add that, following consultations, as I said, the main trade associations, which included the Road Haulage Association, the Freight Transport Association, the Confederation of Passenger Transport and the main trade unions, Unite and the United Road Transport Union, all supported this change. Their only criticism of the Government on this issue could have been the amount of time that it would take to change the law, but they did not even raise that as they are very keen that we should go ahead and get this this done.

These regulations are important measures for enhancing the enforcement of the drivers’ hours rules. They will mean that more offenders can be dealt with at the roadside rather than through time-consuming prosecutions. In doing so, they will help to keep our roads safe, which is the most important thing. I commend these regulations to the Committee.

[Lord Rosser]

Do the regulations apply only to the international carriage of goods or do they apply to national carriage of goods, that is, within this country? Does it have to be goods that are coming from abroad into this country? Also, on paragraph 8.2, I am not aware of the way forward to address the assurances sought by the two trade associations. There are a number of issues set out in paragraph 8.2 on which they sought assurances, but I am still not clear on the nature of the assurances given. I would like to know that either now or in writing.

[Baroness Chisholm of Owlpen]

On the noble Lord’s first question, it applies to both. On the second, the DVSA has assured the industry that its enforcement officers will ensure that offences will be recorded against the operator responsible for the driver on the date of offending and attribute the OCRS scores to the appropriate record.

[Lord Rosser]

What assurance was given when they wanted,

“assurances … that enforcement officers would focus on serious offences and not penalise all minor offences”?

On the face of it, that is allowing someone to get away with something. What is the definition of a minor offence that has been agreed in the assurance that has been given, or the way forward that has been agreed?

[Baroness Chisholm of Owlpen]

I love all the inspiration that is coming from over my right shoulder. The DVSO will be issuing fixed penalties for offences at the threshold that would normally go to prosecution. That is the whole point: it is to save prosecution. This is normally when examiners detect at least four less serious historical offences or one serious offence. So it is a build-up, really. Where normally they would say, “Right, we need to send you to court”, instead they will impose on-the-spot fines.

Motion agreed.