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

Volume 795: debated on Wednesday 20 February 2019

Motion to Approve

Moved by

My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union without a deal. They also make amendments under the European Communities Act 1972. They amend EU Regulation 561/2006, which sets out driving time rules for commercial drivers, and EU Regulation 165/2014, which sets out rules on the use of the tachograph device used for the enforcement of driving time rules.

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. Of course, the consequences of driving any vehicle when fatigued can be catastrophic. These rules are enforced by the Driver and Vehicle Standards Agency and the police at targeted roadside checks, as well as by visiting operators’ premises. The principal tool used by enforcement officers is the record generated by the tachograph.

The regulations would make three broad categories of amendments. First, the draft instrument would make the necessary changes so that the EU regulations retained in UK law by the withdrawal Act continue to function correctly after exit day. For example, EU processes, such as the need for the UK to seek authorisation from the European Commission for exemptions, have been removed. Secondly, the regulations would amend domestic legal provisions, also using the powers of the EU withdrawal Act. Under the current EU regulations, member states put in place effective and proportionate enforcement provisions themselves. In Great Britain, this has been done by means of criminal offences set out in primary legislation and a fixed penalty regime in secondary legislation. Particularly important amendments need to be made to these domestic enforcement provisions to make them work in a non-EU context. Thirdly, the regulations would make changes to domestic law under the European Communities Act 1972. These changes are required to update the legal provisions that implement EU law ahead of exit day so that the regime is fully effective and enforceable.

In addition to containing the directly applicable rules I have already mentioned, EU law includes the obligation on member states to apply the wider United Nations AETR agreement on drivers’ hours rules. With the UK outside the EU, this wider international agreement will in future cover transport operations between the UK and the EU. The majority of the changes here are to ensure that there are explicit domestic provisions, including offences and penalties, to fully implement the AETR agreement. The AETR driving time and tachograph rules mirror the equivalent EU regulations, so this legal change would not affect the regulatory obligations of the drivers and operators in scope of the rules.

While the need for these amendments is particularly important in the context of EU exit, they are in any event legally required under the UK’s current international obligations.

To conclude, the regulations are essential to ensure that the EU regulations on drivers’ hours, and the tachographs used to enforce them, continue to work effectively in the UK from exit day in the event of no deal. These rules are at the heart of the road safety regime for commercial vehicles.

The Minister referred to the regime in respect of tachographs. Paragraph 2.7(a) of the Explanatory Memorandum states that,

“this includes amendments to criminal offences in relation to the use of tachographs”.

I take “amendments” to mean changes to the existing regime for criminal offences. Can the Minister say what will change, or are the amendments technical with no changes to criminal offences?

The penalties precisely mirror those already in place for the existing equivalent offences. For tachographs, the penalty for breaches of the type-approval rules follows the legislation already in place for the type approval of motor vehicles. The fixed-penalty amounts for infringements of the AETR are the same as for infringements of the equivalent EU rules. I am happy to go through this in detail if the noble Lord would like; I expect he would.

So there were no changes in the actual impact of criminal offences on the individual, either in terms of the offences or the penalties?

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.

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?

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.

My Lords, these are really important regulations. They are vital for road safety and for driver welfare, because over the years there has been great concern about the way drivers have been expected to live when they are not driving along the motorways.

Up to now, drivers have been bound by the EU drivers’ hours regulation and the EU tachograph regulation. In future they will be bound by the AETR, which covers a much wider group of countries. From what the Minister has said, it appears that these two sets of regulations are very similar and essentially the same.

I had intended to ask about the three new offences and amendment of two existing ones, but the noble Lord, Lord Rosser, has already asked about that. It is important to find clarity on this.

The Secretary of State will be responsible in future for the approval of recording equipment. Currently, the Secretary of State is responsible only for checking and inspecting, but in future they will have responsibility for approval of the equipment. That is an important additional responsibility. Can the Minister explain who will have that responsibility in Northern Ireland? I realise that this SI does not apply to Northern Ireland, but clearly tachograph issues are very important in Northern Ireland, because drivers cross the border all the time and cross-border trade is so important. Can the Minister explain how it will work in Northern Ireland? Obviously, drivers from the Republic of Ireland will follow EU rules.

This is a complex set of amendments, including a wide range of offences for matters such as imposing time schedules that do not observe AETR rules, supplying equipment that is not type approved, failing to install or use equipment, and even failing to inform the Secretary of State if a manufacturer is aware of security vulnerabilities.

Paragraph 6.10 of the EM refers to,

“measures to be taken in … a crisis”,

in road haulage. This includes,

“information exchange between Member States”.

The reference to such information exchange will be deleted by these regulations. Surely the exchange of information would be absolutely fundamental if you had a crisis in road haulage. For example, if you have a huge pile-up of lorries on the UK side of the channel or a problem with some kind of blockage or strike, it is so important that you share that information with the countries to which those vehicles are destined. Can the Minister explain what the Government intend to do in future? Having obliterated that information sharing, what will they put in its place?

There are measures here to ensure that a lorry with EU-approved equipment will be able to operate in the UK in future. Clearly, that is fundamental. We also appear to have a welcome provision that, if the EU tachograph regulation is modified in future, we will adopt those changes. This is a very different approach to the one taken in the previous SIs we looked at, but it is very welcome because it is simple, straightforward and common sense—I hope the Minister will correct me if I have read this wrongly, but I think I am correct. However, having such a different philosophical policy approach from one SI to another will not make life any easier for people working in the automotive industry, the haulage industry and so on.

Paragraph 7.14 makes reference to certain exemptions, transferring the powers to the Secretary of State and giving the Secretary of State powers over testing tachograph equipment. The Secretary of State will be given regulation-making powers over this. Will this be by negative or affirmative procedure?

Paragraph 7.18 raises a crucial issue on the exchange of information on tachograph cards to prevent drivers making duplicate applications in different countries. Obviously, if they do that, they undermine the whole system. In future, we will not be party to the exchange of information between EU countries, but as I understand it, we will rely on the AETR system. What system is that? How does it work? Is it as comprehensive and robust as the EU system? Can we rely on being able to get information from that system as easily as we currently do? If you cannot do that, then that does affect road safety.

Finally, can I take this opportunity to ask the Minister about progress on negotiations in road haulage? It is not directly part of this SI, but this is about road haulage, and these negotiations are important. The EU has proposed a temporary nine-month extension to allow UK hauliers to carry goods into the EU. The industry is especially concerned about cabotage and cross trade, and 25% of international work undertaken by Northern Ireland hauliers is cabotage. The loss of those rights would have a major impact on them, so any update that the Minister can give us this evening would be very welcome.

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?

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.

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.

The noble Baroness raised the issue of Northern Ireland. Type approval is UK-wide and so the Secretary of State’s power applies to Northern Ireland too. We are obviously working closely with the Northern Irish devolved Administration, and they are preparing equivalent amendments to Northern Irish domestic legislation, which will be subject to a separate statutory instrument. We will take that through here in the absence of the Northern Ireland Assembly.

The noble Baroness asked for an update on the EU haulage regulations. She is quite right that, in the event of no deal, it will be incredibly important that there is continued access for UK hauliers to the EU and vice versa. Negotiations on the proposal are being taken forward as a priority and are moving very quickly. On Friday 15 February, there was a COREPER meeting at which the presidency established that there was a qualified majority in support of the current Council text, and negotiations were started on that basis. The next trialogue is on 21 February. Once those discussions are complete, the final legislation will need to be approved by the European Parliament in mid-March, and then adopted by the Council of Ministers.

The noble Baroness is quite right to point out the importance of cabotage. Again, that goes both ways, and so we are looking forward to those regulations being agreed.

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—

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?

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.

I had not understood that important distinction. Why, as a matter of policy, are we committing in advance to mimic the AETR rules when we are not committing to mimic any EU rules? Is it an ideological issue about an international body being superior to the European Union, or what?

No, it is not. For many standards, whether it is UNECE standards or the AETR, we are a contracting party. If we leave the European Union without a deal, we will not be a member of the EU and so will not be following its regulations. But we will be following a broader group—those of the AETR.

This is important. Does an international treaty requirement or obligation apply to the United Kingdom? If not—to ask the question again—why have the Government decided to follow the AETR rules? If it is a discretionary matter, why are they not going to follow changes to EU rules, given that most of our lorry traffic is to the continent of Europe—in other words, to the European Union? It does not make obvious sense.

All EU countries are party to the AETR and practically all international road freight beginning or ending in the UK begins or ends in an AETR country. As I said, if we leave the European Union without a deal, we will no longer be a member and so it would not be appropriate to follow the EU regulations. We have chosen instead to follow the same regulations under the international AETR body, which is a UN body.

I am sorry to interrupt again, but this is a point that will be picked up outside. Are the AETR rules and the EU rules the same?

As I said, they are currently aligned. Rules on driving time, rest time and requirements for the use and installation of tachographs are the same in the AETR and the EU rules. Obviously, I cannot predict what might happen in the future, but we are a contracting party to the AETR, and those wider international rules will underpin transport operations between the UK and the EU after exit.

I think I have answered all the questions. As I have said previously and will no doubt say again, the Government are working to agree a deal with the European Union. But while we do that, and until we have final agreement, it is important that we prepare for the possibility that we will leave with no deal. These regulations are essential to ensure that the drivers’ hours rules will continue to underpin our road safety regime for commercial vehicles. I commend the regulations to the House.

Motion agreed.