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

Lord Rosser Excerpts

Monday 7th October 2019 Lords Chamber

[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.

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[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?

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[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—