Drivers’ Hours and Tachographs (Amendment etc.) (EU Exit) Regulations 2019

Lord Rosser Excerpts

Wednesday 20th February 2019 Lords Chamber

[Baroness Sugg]

I will go through it in detail. A number of the provisions and offences in Part VI of the Transport Act are being amended to ensure that the AETR is fully applied in the UK, as I mentioned earlier. The existing measures, which make provision in relation to the EU regulation, are amended so as also to refer to the AETR provision: Section 96, which contains the offences of non-compliance with the EU and AETR drivers’ rules; Section 97C, which requires drivers to provide tachograph records to employers; Section 97G, which requires operators to ensure the data is downloaded from tachographs; Section 97H, which requires the production to an officer of downloaded tachograph data; and Section 99ZE, which prohibits the creation of false tachograph records and data. Those are the criminal offences being amended to make sure they are in line with the AETR rules.

[Lord Rosser (Lab)]

This relates to what my noble friend said. I intended to say it when I made my contribution, but perhaps I could just say it now. Paragraph 6.5 of the Explanatory Memorandum says that Part 2,

“creates three new offences and amends two existing offences to ensure that there are adequate enforcement provisions”.

I accept that if I had read the document more thoroughly, I might know the answer to this question, but what specifically are the three new offences referred to?

[Baroness Sugg]

I was just coming on to those new offences. The new criminal offences are all under the Transport Act. The first is the failure to install or use a tachograph in accordance with the AETR requirements for in-scope vehicles. The second, in Section 97ZB, is the supply of tachograph equipment that has not been or is no longer type-approved by the relevant authorities. The final new offence, in Section 97ZC, is the failure by a tachograph manufacturer to inform the Secretary of State of known security vulnerabilities in its product. As I said, in particular the provisions around the AETR agreement will be increasingly important as this international agreement takes the place of the existing EU regulations. In the course of the legal analysis work to prepare this EU exit SI, these were the new criminal offences identified as needed. It is particularly important to make sure that the AETR regulatory regime is fully functioning for exit day.

The necessary legal amendments do not modify the substantive regulatory obligations placed on drivers and operators subject to the rules. In the event of a deal, as set out in the draft political declaration, for road transport the UK and the EU intend to develop market access arrangements underpinned by appropriate common standards, including driving time limits. Obviously, that is where we hope to get to, but in the event of us leaving without a deal these regulations are needed. I beg to move.

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[Lord Adonis]

My Lords, I want to raise the issue of changes to tachograph rules hereafter, which is critical. Could the Minister explain how that regime will work? What is the legal mechanism by which we would continue to mimic the changes to tachograph rules in the EU? Is it the Government’s intention that our rules will continue to exactly mirror the rules in the European Union?

[Lord Rosser]

I will make one or two comments on this SI and ask the Minister to repeat a couple of things she has already said.

The Secondary Legislation Scrutiny Committee referred to the three new offences and the amendment to the two existing offences, saying:

“The House may wish to be aware of the creation of new offences using secondary legislation”.


Is the Minister able to give some information—I do not mean an enormous amount—on how frequently DfT uses secondary legislation to create new offences, or to amend existing offences? I am not entirely sure in my own mind the extent to which this is a break from normal practice or simply a continuation of an existing practice which may not be used frequently.

I would be grateful if the Minister could confirm that the effect of this SI is that there will be no changes to the requirements of the drivers’ hours and tachograph rules, so that what we are being invited to agree to is actually a continuation of the present arrangements.

I do not think the Minister will be too surprised if I ask whether there was any consultation with trade unions. Paragraph 10.1 says:

“Department for Transport Ministers and officials have regular engagement with the road transport industry”.


It would be of some relief if the Minister was able to say to me that, on this issue, that covered the trade unions as well as the other key players within the industry, because it talks, at paragraph 6.5, about creating,

“the equivalent offence of failing to install and use recording equipment”.

Presumably, a driver could be accused of not using the recording equipment, and might, for example, turn it off. To suggest that the drivers of vehicles have no interest at all in what is in this SI is stretching it.

I will leave my comments at that, on the basis that there is no change to the existing arrangements, and that is what this SI is intended to achieve. I would be grateful if the Minister could comment on what is in the Secondary Legislation Scrutiny Committee report about creating new offences using secondary legislation.

[Baroness Sugg]

I thank noble Lords for their consideration of these draft regulations, and I shall turn to the points raised.

The need for these regulations is incredibly important. On the market access regulations, which the noble Baroness referred to, the international access to the EU for the UK—if there is a no-deal Brexit—would be jeopardised without them. The regulation on the haulage market access currently being discussed envisages the continuation of equivalent rules for drivers’ hours and tachographs and includes draft provisions to reduce or terminate market access without those equivalent provisions, so they are important. Even under the limited access provided by ECMT permits, we also need to adhere to the international standards.

On enforcement, parts of the tachograph rules and the current regime of drivers’ hours offences in the UK would not continue to be enforceable in respect of much of the commercial road transport in the UK. Some of these breaches of the rules are incredibly serious, including the fraudulent manipulation of tachographs, so the rules are important to public safety.

On new powers, in many cases the reference to the Secretary of State is a technical change, but the Secretary of State will have some regulation-making powers, and they are exercisable by negative procedure to replace the Commission’s secondary legislation-making powers. At present, such legislation made by the Commission flows through to the UK automatically as directly applicable EU law. The regulation-making powers are transferred to the Secretary of State in relation to authorising exemptions from driver rules for transport operations carried out in exceptional circumstances, which the noble Baroness referred to. Procedures for field tests of tachograph equipment, setting out standardised reporting forms and specifying the content of the training of control officers, and setting out the technical specifications for tachograph equipment are subject to the negative procedure, due to the nature of the amendments which they would make. They are very specific and technical or apply to exceptional circumstances where we need a swift response. It would only be possible to modify the core regulatory obligations, such as maximum driving times and the requirement to install a tachograph, through primary legislation.

The costs on business will not change as a result of these regulations. The effect of the rules will be the same: behaviours which are legal will continue to be allowed, and behaviours which are illegal will continue to be prohibited. The regulations will enable the enforcement of the rules by the DVSA and the police to continue as at present.

On information exchange, which the noble Baroness, Lady Randerson, raised, the provisions are revoked because they relate to co-operation which, in the event of no deal, we sadly cannot guarantee. We would hope, none the less, to be in a position to continue to co-operate with the EU in relation to this sector. That is not an agreement we have reached yet, and we would not be party, for example, to the European Register of Road Transport Undertakings, which is the data exchange on violators, as we would no longer be a member of the EU, but that information flow is important and we would like to see it even in the event of no deal.

This would not affect the enforcement sanctions available. Regardless of Brexit, we are targeting enforcement resources towards offences such as tachograph manipulation, and enforcement against non-UK established hauliers and drivers, which includes the immobilisation of vehicles and fixed penalty notices, is not affected by the regulation or Brexit. We will continue to participate in Euro Contrôle Route, which is not an EU body and is not restricted to EU countries’ enforcement agencies. That organisation is focused on practical law enforcement collaboration and enables the exchanges of good practice.

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On consultation, we have met frequently on this with representatives of the trade associations. The drivers’ hours and tachograph rules are a core part of the regime. We have had many round tables, and the Road Haulage Association and the Freight Transport Association, which are representative of both hauliers and drivers, are supportive of the regime. We have not met the trade unions on this specific SI, but we think that the trade associations are the best representatives of the sector. However, as I said, there will be no change for drivers who are—

[Lord Rosser]

Does the Minister think that the RHA and the FTA are the best representatives of drivers, as opposed to the union they are members of?

[Baroness Sugg]

No, I did not mean to say that. As I said, there will be no change for drivers from these regulations; the rules will stay the same. The EU rules are the same as the AETR rules.

The noble Lord, Lord Adonis, asked questions on divergence. We are not committing to following the EU rules. In the future, the Government will consider on a case-by-case basis how the UK might choose to respond to any changes in EU regulations. These regulations do not oblige the Government to remain aligned to the EU rules, but they do oblige the UK to remain aligned to the AETR rules. We are a contracting party to the AETR, and those wider international rules will underpin all transport operations between the UK and the EU after exit. At present, the AETR is aligned to the EU rules: the rules on driving time, rest time and requirements for the use and installation of tachographs are the same.