Haulage Permits and Trailer Registration Bill [HL]

Lord Tunnicliffe Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Thursday 22nd March 2018 Grand Committee

[Lord Campbell-Savours]

Could I ask some questions? First, have we an estimate of the number of trailers that fall under the various categories nationally that we might be able to talk about during the course of the Committee? Secondly, do we have any information on the number of accidents that have taken place? If so, do we know what proportion of those accidents have entailed the trailer being overloaded in default of other law?

[Lord Tunnicliffe (Lab)]

Is the Minister going to grasp the general subject of trailer safety under this group or the next?

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

My Lords, I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Bassam, for their amendments on the requirements regulation for the trailer registration system. Our intention is to set out in the regulations the full scope of the registration scheme. Mandatory registration will apply solely to certain categories of trailers travelling internationally to or through 1968 Convention territories. This includes all current EU member states with the exception of Ireland, Spain, Malta and Cyprus. The distinction over limiting the application of the scheme to trailers travelling in 1968 Convention territories is important as it ensures that trailers used for any UK to Republic of Ireland journeys will not be subject to mandatory registration. The Government have been clear that we are committed to ensuring that no hard border is created on the island of Ireland, and the Bill will not create any additional requirements for trailers used solely for journeys between the UK and the Republic of Ireland.

The intended scope for the mandatory scheme, as mentioned by the noble Baroness, Lady Randerson, and set out in the policy scoping document, is for commercial trailers over 750 kilograms and all trailers over 3.5 tonnes undertaking such journeys. The convention is not concerned with the registration status of trailers weighing below 750 kilogrammes, which is why we have used that bracket. I will explain our thinking on trailers weighing over 3.5 tonnes shortly.

The setting of all the details of scope in regulations is done in order to offer clarity to trailer users and allow the regulations to clearly cover all matters relating to registration. However, I sympathise with the noble Baroness’s point about having some certainty on that; that is why we have included them in the policy scoping documents and are consulting with the industry. The fact that they are not in the Bill will also allow us to consult further before setting the exact details. While we are clear that mandatory registration should apply to commercial trailers over 750 kilograms, further consideration is needed on whether larger, non-commercial leisure trailers should be covered by the regulations made under the Bill.

I am not sure how heavy my noble friend’s trailer is, but from our engagement with industry, we are confident that trailers over 3.5 tonnes are very limited in number—I fear that we have been unable to come up with exact numbers. However, in light of this, we are considering whether the registration scope should be mandatory for these trailers and we want to consult on this further with the sector before making a final decision. For that reason, and because we believe all of the details should be in one place in the regulations, we do not want to set these categories out in the Bill at this stage.

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[Earl Attlee]

My Lords, I apologise for starting to get worried that the noble Lord, Lord Bassam, was not going to move his Amendment 18 so I have spoken substantially. However, this gives me the opportunity to raise another argument in support of the general thrust of the noble Lord’s amendment, while being quite sure that we should not put it into the Bill.

Not only is it a question of the tragic accidents and injuries that the noble Lord referred to, but quite often you see these relatively small trailers causing an accident and disruption on the strategic road network. That can be really expensive to the economy. I hope that my noble friend can write to us before the next stage to tell us how many incidents Highways England has recorded of small trailers causing an incident. Often, because they are badly maintained, because their wheel bearings are shot and because the person using the trailer does not realise that the wheel bearings are shot, you see these trailers littered on the strategic road network—the motorways—with a wheel fallen off or bearings collapsed. That causes an awful lot of inconvenience to other road users, so there may be an economic case, forgetting the tragic cost of the accidents.

One point on maintenance is that there is a safety check as well as an MoT. You could require the trailer to have an MoT or you could require it to have a safety check by going to a garage to give it the once-over, which might achieve an awful lot of what we want without all the bureaucracy that the noble Lord, Lord Campbell-Savours, worries about. The judgment is, of course, a matter for the department.

[Lord Tunnicliffe]

My Lords, when I was 17, I owned a motor car which was six years older than I was. It was in the days when a good tyre was one where you could not see the canvas. I was happy with my motor car. Suddenly the dreadful news of the MoT fell on the world. My motor car, which cost £7 and 10 shillings—about 200 quid, I suppose, in today’s money—had to have an MoT. In the early days of the MOT, you still did not need tread to get through, you just needed not to have canvas. We were terrified: this was going to be the end of the world for the motoring community. In the real world, it has not turned out like that at all. The MoT has progressed and become more refined. As we were discussing on another Bill in a similar area, 90%-plus of road accidents are now down to the driver. Vehicles are now extraordinarily safe because of this progressive legislation.

We talk about a small trailer, but even the smallest trailer weighs about half the weight of the vehicle pulling it. It will have kinetic energy similar to the car. We have a system to manage the kinetic energy of the car called the MoT, drink-driving rules, and so on, and we have created safety in the car. Here we have on the back an almost unregulated vehicle with its own kinetic energy. The case for managing that at first sight looks overwhelming.

Conversely, we need to understand the incidence. This goes to the centre of modern lawmaking, because if it is sensible, it is about proportionality. We do not have the data in front of us, and therefore we will not formally support the amendment at this stage. The arguments made by my noble friend about the nanny state effect and the community feeling that it is unreasonable are real.

I hope that the amendment will secure the Minister’s attention on how to reach proportionality. If there are few accidents and very few fatalities, then arguably the proportionality argument says, “Don’t interfere any more”. If that is not true, however, then the Government of the day have to look at it very carefully, explain to us what the research is, convince us that it is top of the agenda in terms of progressing regulations and come to a situation where society accepts that if there is to be regulation it is worth while.

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[Baroness Golding]

My Lords, I, too, would hate to be left out of this debate. I have been driving for 65 years and I have never seen an accident caused by a trailer. I have never seen one tipped over at the side of the road. However, having said that, times have changed. These trailers are much more powerful than they used to be, so we ought to look at the legislation and decide what needs to be done.

[Lord Tunnicliffe]

On a note of personal explanation, I am seized of the risk of trailers: there is clearly a strong case for regulation and testing. Nevertheless, there are at least 1.5 million vehicles that would have to be tested and therefore the issue of proportionality should be properly considered. To get to the bottom of this, we need good data. As a minimum, I expect from the Minister a commitment to gather data so that this can be carried forward.

[Earl Attlee]

I was the Opposition Front Bench spokesman for transport in your Lordships’ House; if I was in the noble Lord’s position again, I would make exactly the same speech.

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Although I understand the sentiment of the noble Lord’s amendment, I hope he agrees with our view that it is not necessary. The department and its agencies recognise the importance of trailer safety, and indeed towing safety more generally, but we believe that the current regimes are already functioning well to this end. We continue to review these regimes and our approach to enforcement on an ongoing basis. I hope that the discussion of the existing and ongoing measures offers the reassurance necessary for the noble Lord to withdraw the amendment, which is beyond the intentions of this legislation. I reiterate that the Bill makes no changes to the testing regime.

[Lord Tunnicliffe]

The Minister gave us a figure for the number of accidents. I wonder whether she could look at the number of fatalities and write to us with that information.

[Baroness Chisholm of Owlpen]

Absolutely, I have that information here. Trailer and caravan-related collisions accounted for 2% of the 1,787 total number of those killed or seriously injured in collisions in 2015.

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Moved by

[Lord Tunnicliffe]

19: Clause 14, page 9, line 24, leave out “may require or authorise” and insert “must require”

[Lord Tunnicliffe]

My Lords, in moving Amendment 19, I shall speak also to Amendment 20. These two amendments say in effect that if a trailer is registered, it must have a registration mark and that registration mark must be fixed to it. The Minister will probably call my attention to the Interpretation Act or something. Really, it is just a probing amendment to receive an assurance from the Minister that these “mays” will in practice be interpreted as “musts”. I beg to move.

[Lord Campbell-Savours]

If it is about fixing the certificate to the trailer there will be a danger that that can be easily removed, particularly on small trailers. On timber trailers there will be a particular problem, so if the Government were to go down the route of smaller trailers, which obviously I hope they do not, they may have to find some way of burnishing it into the wood or people will simply steal certificates and put them on their own trailers. If it is an aluminium trailer, again, it could be unscrewed unless it was riveted on in some way. All I am arguing is that if we go down this route, let us have a system that works and does not allow people simply to—if I may use the term—nick a certificate from one trailer and put it on to their own trailer for a few days while they are using it and then return it to the original trailer.

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[Lord Tunnicliffe]

My Lords, I think that that was a satisfactory answer and I will read it with care. I hope it boiled down to the fact that the overwhelming volume of the trailers that are registered will have a mark and it will be fixed to them. The second-order advantages, particularly in terms of theft, will come in only if the general approach is overwhelmingly positive. I note that the Minister is nodding, which I hope will go in the record. With that nod, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

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Moved by

[Lord Tunnicliffe]

21: Clause 21, page 13, line 4, at end insert—
“(2A) A statutory instrument containing regulations under section 17 (offences) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Tunnicliffe]

My Lords, in moving Amendment 21, I will speak also to Amendments 24, 25 and 27. This group and the next group of amendments are vehicles to effect the recommendations of the Select Committee on the Constitution and the Delegated Powers and Regulatory Reform Committee. I hope the Minister will agree with everything I have to say because traditionally the Government respect those committees for the very careful work they do. It is good to see the noble Lord, Lord Blencathra, here. I am sure he will speak to these amendments. The work of these committees is essential to keep our law sensible, balanced and correctly scrutinised.

The 11th report of the Select Committee on the Constitution, published on 8 March, says at paragraph 7:

“If there are exceptional circumstances which require the creation of criminal offences by regulations, they should normally be subject to the affirmative procedure”.


It then goes on to talk about sifting. Clause 17(7) of the Bill says:

“Regulations under this section may not provide for an offence to be punishable with imprisonment or with a fine exceeding level 3 on the standard scale”.


But clearly there is a criminal offence and as a general rule we do not believe that any criminal offence should be introduced with a negative instrument. I hope the Minister will agree.

Turning to the subject of Amendment 27, the Delegated Powers and Regulatory Reform Committee says:

“Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply to such regulations. For the reasons given at paragraph 9 above, we recommend that there should be a sifting procedure”—


I will come on to that—

“allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.

Paragraph 9 says:

“We also recommend that there should be a sifting procedure for regulations under clause 1—akin to the one we recommended for the European Union (Withdrawal) Bill—allowing a scrutiny committee to recommend an uprating of the negative procedure to the affirmative procedure”.


The Select Committee on the Constitution also made some references to Clauses 8 and 17. Therefore, for simplicity’s sake, we recommend that all the regulations under Clauses 1, 2, 8 and 17 should be subject to a sifting procedure which can decide whether any should be subject to the affirmative resolution procedure. I beg to move.

[Lord Blencathra]

My Lords, as the chairman of the Delegated Powers and Regulatory Reform Committee, I am delighted to say a few words on Amendment 27. No doubt my noble friend the Minister swotted up on all the briefs and the grand issues relating to Brexit and European trailers; little did she know that she would have to hear confessions from Members on all sides of the Committee about their experiences driving good trailers, big trailers and dodgy little trailers—and wheels falling off.

I am not sure whether I can trump the noble Lord, Lord Tunnicliffe, but as a boy up on the farm in the Highlands I was able to drive a tractor by the age of 10 and drive it on the highway by the age of 12. When I was allowed legally to drive a car on the highway, my first car was a three-gear Ford Prefect which, on a long downhill slope, I once got up to 62 miles an hour—I could drive the tractors a bit faster.

The Delegated Powers Committee has recommended the sifting committee procedure for Clauses 1 and 2. We recommend it for Clause 1 because, as we say in our report,

“the content of any regulations made under clause 1 will depend on future international agreements … there is no current indication as to what regulations under clause 1 might say or how important they might be, if they are needed at all … it cannot be known in advance that the negative procedure will always be suitable for regulations made under clause 1 … it might transpire that some regulations made under clause 1 might require the affirmative procedure”.

On Clause 2, to shorten our report to the basics, we cite the Explanatory Memorandum which states that,

“it is not yet clear what sort of a regime or regimes will need to be introduced and, in the interest of ensuring that the provisions cater for agreed scenarios and are not too wide, it is necessary to legislate by way of secondary legislation once negotiations have been concluded and the nature of any permit scheme that needs to be introduced is clear”.

We say:

“Although the Government do not currently know what regulations under clause 2 will contain or how significant they will be, the Government propose that the negative procedure will always apply”.


For that reason, we think that there should be a sifting mechanism where colleagues in the House can decide which ones are tiddly statutory instruments and the negative procedure is okay and which ones require the affirmative procedure.

We stress in paragraph 10:

“We are not seeking to make a sifting mechanism a general feature of our legislative landscape”—


we are not seeking to attach it to every Brexit Bill.

“However, the circumstances of the United Kingdom’s exit from the European Union have given rise to unique legislative challenges”.


We know that next year we may have 800 to 1,000 statutory instruments to get through, perhaps in a short period of time. In those circumstances we have recommended the sifting procedure to the House. I know that the Leader of the House, the Lord Privy Seal, has rejected that already, but we recommend it for the Bill because the first five clauses begin with the words, “Regulations may”. That is almost unique. Because there will be so many regulations and some will be routine, trivial and therefore not crucial, some will be mega important and may require the affirmative procedure, we commend the sifting mechanism—exactly the same procedure as we identified in the European Union (Withdrawal) Bill, using the same secondary legislation scrutiny procedure, not creating any new all-singing all-dancing committee—to the Committee, and I commend it to my noble friend.

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[Earl Attlee]

My Lords, my noble friend is very helpful. I cannot conceive how any regulation under this Bill would need the affirmative procedure, but we will see what the Minister says.

[Lord Tunnicliffe]

My Lords, we proposed this amendment to stimulate this sort of debate. We felt that the recommendation from the committee was particularly sensible because it was proportionate. In fact, it will probably allow the committee to make sure that very few orders have to go through the affirmative procedure, and that is why we hope the Government will accept the amendment. It is a practical way of dividing orders, given the fact that, at this time, we do not know what sort of orders will come in front of us.

[Baroness Sugg]

My Lords, I recognise and fully welcome the point that appropriate scrutiny should be given when considering regulations. As discussed, there are a number of ways that this could be achieved. Noble Lords have proposed a number of amendments that would apply the affirmative or sifting procedure. Some of these build on the recommendations made by the DPRRC and the Constitution Committee. I thank the committees for their work; I agree with the noble Lord, Lord Tunnicliffe, that their work is absolutely essential to making our lawmaking better. I fully understand the support of noble Lords for these recommendations but I am afraid I would like to set out our thinking on the different clauses at some length.

Clause 21 stipulates that regulations should be subject to the negative procedure. In this, the Government are following the precedent of the haulage operator legislation already in force across the UK. As such, we believe the powers we have drafted are suitably limited and proportionate for the delivery of a permit scheme, and for the delivery and enforcement of the trailer registration regime. We also believe that the negative procedure provides for an appropriate level of parliamentary scrutiny.

I turn to Clause 17 on offences. As my noble friend Lord Attlee highlighted, there are safeguards in Clause 17 limiting the Secretary of State to creating summary-only offences. Again, that is consistent with other offences created within the Bill. The second safeguard is that for some of the offences created in regulations the Bill requires that an appropriate defence must also be included in regulations, although I do understand the noble Lord’s concern around how offences are usually treated. One other argument for doing this in the way we have proposed is that everything would be set out in regulations in one place. But, as I said, I take the noble Lord’s point and will consider that further.

The amendment of the noble Baroness, Lady Randerson, would extend the affirmative procedure not only to Clause 17 but additionally to Clauses 1, 2 and 12. I want to spend a bit of time on the provisions in Clauses 1 and 2 as they affect non-EU related issues. The clauses were designed to put into effect agreements with the EU and other countries on international haulage. What will need to go into the regulations will not only reflect what has been negotiated with the EU but also, as we discussed last week, what has already been agreed with third countries. As well as providing flexibility while the outcome of the negotiations is unknown, the negative procedure for these regulations also acknowledges that future amendments to permit schemes would not be restricted by requirements to return to primary legislation on each and every occasion, which if they were affirmative we would have to.

In Part 2 of the Bill, the provision of Clause 12 allows for the creation of the registration scheme that will enable users of UK traders to satisfy fully the conditions in the 1968 Vienna Convention. The detail of that scheme, as with existing vehicle registration powers, may need to adapt to meet future requirements. We will be consulting on the detail of the trader registration scheme with industry, and again we will be replicating many aspects of the existing vehicle registration scheme that is created under the Vehicle Excise and Registration Act 1994, such as setting out the process for issuing registration documents and specifications for registration plates. Regulations for vehicle registration made under that Act are made under the negative procedure. Once that scheme is in place, we may need to amend or update the regulations over time—for example, as the DVLA processes change. To give an example, the equivalent regulations for motor vehicle registration have been amended 12 times in the last 10 years. Those are our arguments for not having the affirmative procedure throughout. As I say, I understand noble Lords’ concerns about the first time that these regulations come in.

The sifting committee procedure proposed is similar to that set out in Schedule 7 to the European Union (Withdrawal) Bill that is currently before the House. As my noble friend Lord Blencathra said, the process of leaving the European Union has certainly thrown up some unique legislative challenges, not least for our noble friend Lord Trefgarne and the sifting committee. The requirement was included in the withdrawal Bill, given the issues and significant powers that, of necessity, are provided by that Bill. We think the proposed powers that we are considering here are far more limited and primarily technical in nature, as my noble friend Lord Attlee said. This amendment as it stands would also require Parliament to go through the same procedure for regulations made in respect of our arrangements with non-EU countries, which provide a sufficient number of permits for the levels of trade. I do not believe the agreements need such scrutiny.

I point out to the Committee that Clause 8, which is referred to in the amendment, would set out in the Bill the offences and penalties for failing to carry a haulage permit and failing to comply with an inspection. There is no power to make regulations under Clause 8 itself; it simply relates to regulations made under other clauses, so in this case there would be no regulations for the sifting committee to consider.

On the question of timing, I think we all welcome the news from Monday that the UK and EU negotiating teams reached another important milestone in the Brexit process by agreeing the terms of a time-limited implementation period, but of course as a responsible Government we want to continue to plan for all scenarios. We need to take responsible and, importantly, timely steps to ensure that the haulage industry can prepare. As we have said before, we are hoping to get the scheme in place by the end of the year, and obviously we would need to get everything through before then. I admit that the timetable is challenging.

We are working closely with the DVSA and the DVLA to align the systems, but stakeholders have already raised with us the pressure that they will be under involving the registration of vehicles. The run-up to Christmas is the busiest time of year for hauliers, and of course they are asking for as much time as possible. I am keen for us to give them sufficient time to put in applications, and I am sure noble Lords will also support that aim.

I recognise that the aim of the amendments is to ensure that Parliament can take appropriate scrutiny, and I want to consider that carefully. I am conscious that Parliament needs sufficient time to properly scrutinise legislation but, as I said, I am sure that noble Lords will also be alive to the interests of UK hauliers when making judgments on handling. As we have discussed, there are various options available to ensure that the regulations are subject to appropriate scrutiny. I have listened to the arguments made today and I will consider them carefully ahead of Report. At this point, I hope the noble Lord will be willing to withdraw his amendment.

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[Lord Tunnicliffe]

My Lords, in the light of the Minister’s response, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Moved by

[Lord Tunnicliffe]

22: Clause 21, page 13, line 4, at end insert—
“( ) No regulations may be made under sections 1 to 5 or 12 to 18 of this Act unless a draft of an instrument containing those regulations has been laid before both Houses of Parliament within three months of the passing of this Act.”

[Lord Tunnicliffe]

My Lords, I refer once again to the report from the Delegated Powers and Regulatory Reform Committee, particularly to paragraphs 2, 3 and 4. Someone devised these wonderful words in paragraph 2:

“The Bill is wholly skeletal, more of a mission statement than legislation … Clauses 1 to 5 all begin: ‘Regulations may …’ … 16 of the 24 clauses contain delegated powers, all of them subject only to the negative procedure”.


Paragraph 3 states:

“It would have helped us had the Department for Transport, in addition to providing a delegated powers memorandum, produced some illustrative regulations alongside the Bill. As it is, we are in the dark because the devil will be in the regulatory detail.


We appreciate that the position remains unclear for a variety of reasons. Nonetheless, the Minister may wish to assist the House in its consideration of the Bill at Committee Stage by providing illustrative examples (however tentative and qualified) of at least some of the regulations to be made under the main delegated powers in the Bill”.


That has not proved possible, so we have tabled the amendments to give effect to the desire expressed in that paragraph. I beg to move.

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[Baroness Sugg]

I fully understand that and will send the noble Lord more details on it. To go back to the fee, as I said, it is very difficult to determine the exact cost but I understand that it is an important consideration. We are confident that the fee will be significantly less than the current vehicle registration fee, for example, which is £55, but we are not able to provide any more detail on that at this time. That also goes towards trying to ensure that we get the right balance when deciding which trailers need to be registered and which do not, why we have not included 750 kilogram trailers and why we do not think this should be mandatory for domestic use—it is a not insignificant cost for a family going on a camping holiday once a year.

I hope I have explained why, in this case, the legislation will not go unused, despite whatever agreement we reach with the European Union, in the case of either the permit scheme, which will be used for existing and future schemes with other countries, or the trailer registration scheme, which will come into effect anyway because of the earlier convention. In the light of that, I hope that this discussion has reassured the noble Lord to the extent that he feels able to withdraw his amendment.

[Lord Tunnicliffe]

My Lords, I will study the Minister’s response with care and decide whether to bring forward anything on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 22 withdrawn.