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Heavy Commercial Vehicles in Kent (No. 1) (Amendment) Order 2021

Volume 815: debated on Tuesday 19 October 2021

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Heavy Commercial Vehicles in Kent (No. 1) (Amendment) Order 2021.

My Lords, the two instruments that I am speaking to today, along with the Heavy Commercial Vehicles in Kent (No. 3) Amendment (No. 2) Order 2021, are a package of measures and it is important that they should be debated together. I am grateful to the House for facilitating this. While the Heavy Commercial Vehicles in Kent (No. 3) Amendment (No. 2) Order 2021 requires the negative procedure, it should be taken into account when considering the two amending orders, as it completes the whole picture. Taken together, they support the effective management of Operation Brock and strengthen the enforcement regime that underpins it.

As noble Lords will be aware, the Government have been working with partners in the Kent Resilience Forum to continue to develop Operation Brock. Operation Brock is a co-ordinated multiagency response, owned by the Kent Resilience Forum, to manage heavy commercial vehicle traffic during cross-Channel travel disruption, specifically when capacity for HCVs to leave the UK through the Port of Dover or the Channel Tunnel—together, the short straits—is significantly restricted.

In the instances to date when Operation Brock has been deployed, it has successfully managed to limit the effects of traffic disruption on freight traffic and other road users, both on the main motorway and local road network. We need to be able to continue to use Brock should cross-Channel disruption occur in future—for example, due to bad weather or industrial action. The existing legislation will expire at the end of the month and the amending orders seek to put it on a stable footing by removing the sunset clauses. Together they are a vital part of Operation Brock, as they provide the enforcement and the traffic restriction regime that underpins its operation.

By way of background, the legislation was first put in place in 2019 in preparation for a potential no-deal departure from the EU. It was updated in 2020 in preparation for the end of the EU transition period and once again in 2021 in response to the coronavirus pandemic.

The No. 1 2019 order provides powers to traffic officers to support Operation Brock and sets the amount of the financial penalty deposit for breaching restrictions created by the three orders. The amount of the deposit for breaching the restrictions introduced by the instruments is set at £300. The No. 1 amendment order removes the sunset clause and removes references to redundant offences from the Road Safety (Financial Penalty Deposit) (Appropriate Amount) Order 2009 to reflect amendments made by the other amending orders.

The No. 2 2019 order restricts cross-Channel HCVs from using local roads in Kent other than those on the approved Operation Brock routes when Operation Brock is active. The amending order updates which roads are restricted and removes the sunset clause.

To complete the picture, the Heavy Commercial Vehicles in Kent (No. 3) Amendment (No. 2) Order 2021, which is subject to the negative procedure, will again remove the existing sunset clause provisions from the No. 3 2019 order. That order restricts access for cross-Channel HGVs to the motorways in Kent, including the contraflow on the M20 and use of the M2, when Operation Brock is active.

To summarise, these amending instruments continue the powers from the 2019 orders by removing the sunset clause. In doing so, Brock will be an available option for the Kent Resilience Forum to keep traffic moving to, from and through Kent. These orders remove the extraneous elements that are no longer needed—the provisions relating to the EU transition period and to the Covid-19 pandemic, which were intended to be temporary. We wanted to underpin the core enforcement and traffic restrictions of Brock for the longer term. These orders are of vital importance to allow sensible traffic management in Kent. Operation Brock has proven to be an efficient traffic management measure. I commend the orders to the Committee.

My Lords, I am grateful to my noble friend on the Front Bench for expanding a little on what is in orders No. 1 and No. 2. I took the opportunity to have brief consultations with some hauliers in my former constituency of Northampton South. I will go through the paragraphs of the Explanatory Memorandum that I think are relevant; they are coterminous across the two orders.

My noble friend talked at some length about the sunset clause, in paragraph 2.6. In my experience in both Houses, the purpose of a sunset clause is that it is a time to review a situation. It ensures that the department involved knows that there is a particular time when the order, or whatever it may be, must be reviewed. If the Government of the day decide that they no longer need it, okay, it is finished. But my noble friend said that they would like to keep it, just in case they might need it at some future time. With great respect, that is a burden on the industry because hanging over it is the fact that, at any point in time, Her Majesty’s Government can suddenly bring it in again, even though it is in a modified form. My conclusion is that there should be a sunset clause, maybe in 10 years or whatever is an appropriate time, because that ensures that there is then a proper review. Otherwise, all we do is add to legislation sitting there to no purpose. That is my view on that.

On paragraph 7.1, has there been any report on the review of the effectiveness of Operation Brock? That is an important dimension, particularly to hauliers. There is no mention that there has been, but I would have thought that somebody must have done one and that, if they have, it ought to be published. On paragraph 7.3, is my noble friend saying that the requirements listed are definitely no longer needed at all—in which case, has this been publicised sufficiently to the industry?

Paragraph 7.6 is about the supply chain, which we all know is causing a problem. Do Her Majesty’s Government expect normally not to need any further legislation, as has happened over the recent change on inviting in foreign truck drivers? No legislation was needed and an announcement was made. While I am on that, I have to say frankly that it has gone down like a lead balloon among UK hauliers, for two reasons. First, the hauliers ask, “If the short-term people from the continent can be given multi-drops and pick-up cabotage in a difficult situation, why on earth are we UK hauliers not allowed to do that?” Quite frankly, there is a great problem out there—it is painfully obvious —so if we are giving it to the foreigners coming in, which I welcome, why are our own people not allowed to do the same for a short period as well?

Paragraph 10.2 on consultation says that there were just 14 responses. I am not quite sure how to read that. Is that 14 companies—if it is, it would have been helpful to list them as companies—or 14 people who are interested in the industry who have responded? What is it? The universe of that is really quite important. If it is companies, is it just companies using Dover, or is it some other universe? It would be enormously helpful if my noble friend could tell us what the universe is.

The haulier handbook in paragraph 11.1 is very welcome and the trade welcomes that. Regarding the 17 locations, I am not quite clear, but I assume that this affects all ports trading between the UK and the EU. I did not have time to work out how many ports there are, but it must be a fair number. So, if the 17 locations are all related to Dover, that is fine, but if they are across the UK then that is not quite so fine.

Finally, I raised the training of HGV drivers with my noble friend on the Floor of the House the other day. My noble friend will know that there was a scheme for professional career development loans for drivers and for some reason it was closed in 2019. The amount of the loans available were from £300 to £10,000. These were for families that were probably not that well off and probably could not find that money very easily. If we have a shortage of HGV drivers—which we appear to have—why on earth was the scheme closed to new entrants in 2019? I do not expect an answer today, but can my noble friend have a look at that situation and see whether we should not be reopening that straightaway?

I start by thanking the Minister for her explanation. I share some of the noble Lord’s concerns. I have real concerns about these SIs. Although they seem to be perfectly reasonable attempts to introduce a more systematic way of dealing with the pressures on Kent roads and ports, especially Dover, in practice this is yet another step in the creeping accumulation of powers by this Government. This is an issue to which our attention was drawn by the Secondary Legislation Scrutiny Committee.

This is an unusual example, because they are SIs that were introduced for one reason; that did not occur, but the Government are using the opportunity to take away the sunset clause and make it a permanent situation. They were introduced under cover of emergency procedures, hence without the usual consultation and safeguards, and are now being converted into long-term measures. This general trend in a number of pieces of legislation is exacerbated by Covid and the pandemic—although that is not relevant in this particular case.

In practice, these amending orders remove the sunset clauses in existing legislation. They make the powers that make up the response which is Operation Brock a permanent feature. The county of Kent will live under a series of extraordinary measures with certain categories of vehicles requiring passports to enter the county. Operation Brock is now to be used as a response to unforeseen disruption; for example, bad weather or industrial action and, I assume, other forms of unforeseen disruption as well. But these are occasional disruptions, and they happen across the UK as a whole, not just in Kent, so there is always the danger that this will be seen as a precedent.

My unease is even greater because when the Government originally introduced these measures, they anticipated—I have to say, I believed them—that there would be long queues on motorways because of new port procedures following our leaving the EU.

In fact, that has not happened, partly because the number of HGVs using the motorways has fallen, partly because there are not any drivers, or at least anything like the number that there used to be, because there has been a general falling-off in levels of trade with the EU, and because the trucks that used to take the land bridge between Northern Ireland and continental Europe now go largely via the Republic and straight down to the rest of the EU. Added together, these issues have meant a reduction in the number of HGVs, so there has not been the level of queuing. The Government took other measures which undoubtedly alleviated the possibilities of queuing. Although it complained vociferously about it, after the first few weeks, the industry became better prepared in terms of the paperwork than it was feared that there might be.

Kent access permits, which the first order is concerned with and as the noble Lord has pointed out, are undoubtedly an additional bureaucratic hurdle for the logistics trade at an already difficult time. It is yet another piece of paper, another form to be completed. I am interested in the practicality of this. Can the Minister explain how often these powers have been used? She referred to that briefly, but can she give us a little more detail about how often these powers have been used so far and how long Operation Brock has been in force on these occasions? Also, how is the logistics industry informed that Operation Brock is active? Someone might be aware that it is snowing, but perhaps not if they are in Newcastle and it is snowing in Kent.

This is an additional piece of bureaucracy for local hauliers too, albeit so that they can continue to use local roads, which obviously is important for them. Paragraph 10.2 of the Explanatory Memorandum referred to the consultation and said that there were 14 responses, and that the majority were in favour. What were the views of the industry representatives? I am particularly interested in the views of local councils because they represent local residents, who have had their lives seriously disrupted by traffic issues in the past. It was hoped that Operation Brock would solve this.

Paragraph 13.2 says:

“The vast majority of HCV drivers travelling via the Channel Tunnel and Port of Dover work for foreign hauliers”.

We know that this balance has changed in recent months, so it would be very useful for all of us if the Minister could update us on the most recent percentages and the balance that there is now between UK domestic hauliers and foreign hauliers using those routes. I look forward to the Minister’s responses.

Again, I too thank the Minister for her explanation of the purpose and content of the orders we are discussing.

The Department for Transport has said that Operation Brock was originally created to deal with disruption caused by our exit from the European Union and then in response to the Covid-19 pandemic. As I understand it, Operation Brock creates, among other measures, a contraflow road layout on the M20 and the setting up of concrete barriers so that lorries heading for mainland Europe can queue on the coast-bound carriageway if there are disruptions or delays at Dover or the Channel Tunnel. Any decision to put out or remove the concrete barriers involves the Government.

The Government now want to remove the sunset clauses from Operation Brock on the basis of the argument that this will mean the Kent Resilience Forum will be better prepared to respond to any type of traffic disruption in the area not related to our EU exit, including industrial action and severe weather. I do not know whether the industrial action reference is to possible action by heavy goods vehicle drivers, who have sought unsuccessfully to get a better deal following the Prime Minister’s assurance that they should be paid more.

This Government claim to be averse to ratcheting up regulation, yet here we have a regulation that was brought in on a temporary basis to address the chaos of the Prime Minister’s Brexit deal and his inadequate response to the Covid-19 pandemic—as set out in the recent joint report from two Commons Select Committees, both chaired by two of his own MPs—now being made permanent, despite the fact that the Government have removed most Covid restrictions and tell us that the PM’s Brexit deal has only upsides and no significant downsides. Can the Government explain why, if disruption at Dover and the Channel Tunnel from industrial action and severe weather is such a threat that these temporary orders must now be made permanent, it was not considered necessary to bring them in in the nine years from 2010 to 2019?

The striking thing about the two Explanatory Memoranda is that they offer no evidence or explanation why making these orders permanent is necessary or what the consequences, based on past experience, would be if the sunset clauses were applied to Operation Brock. In essence, the Explanatory Memoranda—and thus the Government—are saying that these powers would be nice to have in perpetuity, even though we have no clue how frequently and for how long they would be needed, even based on past experience. In the absence of any proper case being made, this appears to be an example of a government desire to have powers for the sake of it.

The other possible explanation for making these powers permanent is that the Government know that the Prime Minister’s Brexit deal has significant downsides and are expecting significant disruption or delays at Dover and the Channel Tunnel if relationships with the EU in general, and the French in particular, deteriorate still further. In that situation, the Government would attribute the need to make these orders permanent primarily to delays for some other reason—such as industrial action or severe weather—rather than admit that the Prime Minister’s brand of hard Brexit is not all sweetness and light for Britain. The Explanatory Memoranda slip in a reference in paragraph 8 to

“delays from customs checks at the international borders in Kent”,

which may refer to the continuing problems associated with the Prime Minister’s Brexit deal.

I ask the following questions, to which I would like a full government response, either today or subsequently. As far as I can see, although I may be wrong, none of these questions is addressed in the Explanatory Memorandum. First, what happened before Operation Brock when there were delays at Dover and the Channel Tunnel unrelated to our EU exit or Covid? Once again, if those delays were so bad that the Operation Brock powers now need to be made permanent, why did the Government allow that position to continue for nine years from 2010?

Secondly, on how many occasions since 2010 has disruption caused by severe weather been such that Operation Brock would actually have been brought into operation, and for how long, had the now proposed permanent powers been available?

Thirdly, on how many occasions since 2010 has disruption caused by industrial action been such that Operation Brock would actually have been brought into operation, and for how long, had the now-proposed permanent powers been available?

Fourthly—as the noble Baroness, Lady Randerson, asked—on how many separate occasions since the present regulations first came into effect has Operation Brock been brought into operation in full, for what reason, and for how long on each occasion? As has been said, we have not had an evaluation of the effectiveness or otherwise of Operation Brock to date, yet these powers are being made permanent.

Fifthly, what is the cost of building and removing on each occasion the Operation Brock contraflow barriers on the M20? Have there been any occasions when the barriers have been put up and then removed without being used?

Sixthly, how many additional traffic officers have already been required in connection with Operation Brock and it being brought into effect, and how many will be required if the sunset clauses are removed and the order becomes permanent?

My seventh question relates to the Explanatory Memoranda, which refer to a national consultation between 26 May and 20 June this year, and say that key affected stakeholders in Kent were

“made aware of the consultation when it launched”,

whatever that phrase means in practice. We are then told, as has already been pointed out, that the consultation received 14 responses, which the Government admit was “low”, but that it included “members of the public”. Has any other national consultation received just 14 responses? Were the views of local residents actively sought? In some quarters, Operation Brock has proved controversial, with complaints from some local residents affected about disruption caused during work to install the required infrastructure.

I hope that the Government in their response will, not only today but subsequently, provide answers to the questions that I and others have raised, but also provide a rather better argued case than is contained in the Explanatory Memoranda as to why this order must now become permanent, contrary to what we had been told would be the case up to now. Clearly, something of some significance must have happened or come to light, which could not have been known or appreciated before, to justify the Government’s change of mind over bringing into effect the sunset clauses. We are entitled to be told exactly what that something is and the detailed case for the Government’s U-turn over the sunset clauses. I await the Government’s response.

My Lords, I thank all noble Lords for their considered contributions today. I hope to put their minds at rest—but also I shall write, because I do not quite have all the answers to the questions. That always annoys me a bit, but I shall do my best.

Briefly, I would like to take noble Lords back, although I am afraid that my memory is a bit dodgy, to what is probably just over 10 years ago, when I remember spending many hours with my children in a hot car in Kent trying to get across the short straits. It was dire. I sat on a local road in Kent for hours. I think it was due to industrial action—it was a sunny day, so it probably was not bad weather. But we know that, when there is disruption at the short straits, Kent stops. What we are trying to put in place today is something to help the people of Kent. I shall endeavour to set out the rationale behind that and how the interventions that we have put in place to deal with a potential no-deal exit and Covid turned out to be good things—progress, so to speak. That progress should be grasped on this occasion, and not left to rot.

Looking at where we are, the whole point of these regulations is to put in place a permanent framework around a temporary traffic management solution. My noble friend Lord Naseby asked whether it had been successful. I would say that the proof of that is in the pudding. It has been successful; we have not had great big tailbacks in Kent. We also know that it is more effective than the previous intervention, Operation Stack, which really did not go down very well with the local community.

The whole point of Operation Brock is that it allows HCV drivers to be stationed on the M20 and stops them rat-running through local roads and blocking them, as happened on my very unfortunate journey many years ago. It will only ever be used in the event of significant disruption at the short-strait crossings. The noble Lord, Lord Rosser, read an awful lot into that, which I am afraid is simply not there. All sorts of things could cause disruption at the short straits. The whole point of what we are trying to do today is that, if there is any disruption, the county of Kent does not come to a standstill, because that is not good for people trying to cross the short straits and certainly not good for the people of Kent.

Sitting suspended for a Division in the House.

To return to discussing the Operation Brock traffic management scheme, maybe I can take noble Lords back, not as far as previously but just a couple of years, to when we bought the quick movable barrier. This was an opportunistic purchase; someone came along and said, “Oh look, there is a machine that you can store on the side of the M20 and can quickly put out these blocks.” Previously we had put up a metal barrier that had taken a very long time to put in, and when it was in then it was in and you could not take it back down again. It caused massive amounts of disruption.

The whole point of the QMB was that it was an opportunistic purchase, because the technology became available, and we realised that it would work incredibly well in Kent and form part of Operation Brock. That is why we went ahead and did it. This is one of those things that sometimes happen when you have to reach out for solutions, and one becomes available that actually looks good for the longer term. That is just what has happened in this case.

As noble Lords will know, when we put out the QMB, it allows HCVs either to use the coastbound section of the M20 in free flow or to be controlled using a traffic light system at the front of the queue to split the port of Dover and Eurotunnel traffic. It basically organises all the freight movements going through Kent. What we propose is that, when Operation Brock is in place, those HCVs are not drifting around the local roads of Kent, blocking people’s driveways and stopping them doing their day-to-day business.

The noble Lord, Lord Rosser, asked about the cost of the QMB, and I am happy that I have the answer for him today. The estimates for the ongoing resourcing of the QMB, when implemented over a six-month period, are £9.5 million and £5 million for National Highways and Kent County Council respectively. The cost of deploying and removing the QMB for an incident are in the order of £200,000.

What is the current status of the QMB and Operation Brock—how many times we used it and so on—so far? Noble Lords will recall that the closure of the border by the French Government towards the end of last year caused vast amounts of chaos for the traffic in Kent, although that was somewhat improved by the fact that we had Operation Brock, and so on. So we deployed the QMB going into the start of 2021, and we stood it down in April. It was deployed for a further couple of weeks in July when we felt that there may be delays, not at our border but potentially in leaving the country because of the checks at the French border.

Operation Brock is not currently deployed, so the moveable barrier is stored quite nicely all along the side of the M20. It just sits there, not doing anything. There are no obligations on hauliers—nothing happens at all. I point out to the noble Baroness, Lady Randerson, who seemed to be under the impression that there is some sort of Kent access permit that will still be in place, that there will not be—it will be taken away. If I am a local haulier, the only bureaucracy I am seeing from this is that I should speak to my local county council to get the pass that I will need to make sure that I am not stuck in Brock queues—we would not want that to happen. They will probably do that, because it is definitely in their interests to do so. If I am a haulier travelling around the UK, I will want to know whether Brock is in operation. The haulage grapevine works incredibly well, but even if it does not, the national highways VMS—variable messaging systems—would say “Operation Brock is currently in operation”. All hauliers know what Operation Brock is; there is no confusion whatever in that regard.

What is the alternative if we do not take these powers? I sense that there is a feeling that there is a bit of power mission creep here. We have this lovely QMB, which we purchased because it was a good opportunity to purchase good technology. The alternative is for us to put the QMB in place and have no powers of enforcement whatever, which would be slightly pointless. We need to continue to make sure that if a pesky haulier decides to wander into the local roads of Kent, which would be very bad for the local people, the Kent Police can go to that haulier and say, “Excuse me, Madame”—or Monsieur—“where are you going?” If they say, “I’m going to the short straits” and they are not where they should be, they will get a £300 fine. That is exactly what these powers are designed to do. If we do not have them, we cannot do that. We could put in the QMB, and you could say, “You have to come back to Parliament and ask for the powers then”. Neither I, we or the people of Kent have time for that. It is therefore important that we have all these things in place just in case they are needed. Of course I hope that they will never be needed, but you know what? There will be disruption due to bad weather; we will probably need it, and it is good that we have it.

My noble friend Lord Naseby asked whether this had been successful in the past. The proof of the pudding in this is how effective enforcement has been in the past, when we have had to use these regulations owing to EU exit or Covid reasons. When the Kent access permit was mandatory, in the three-and-a-half-month period from 1 January to 19 April, which was the period in 2021 I talked about, there were 2,174 offences, each carrying a £300 penalty. As of 31 August, 2,129 of those had been paid. That is, 98% of those fines were paid, which is good: £638,000 of fines were collected. This is good for the people of Kent.

We asked the hauliers, and not that many people responded. That does not surprise me at all, because I should imagine that they know what Operation Brock is, and it is good for them that there is a sensible system of queuing. However, I will provide more in-depth information if I have it about what people said in their response. We received feedback from local residents. There was an open consultation in summer 2021, and we sought the views of local residents and received and considered a number of responses. I do not know how many, so I will check and write to the noble Lord on that.

On the removal of the sunset clause, I thank the SLSC for its work on this, but I was a little concerned by it saying that this would mean

“making Operation Brock permanently available”.

That is a good thing; I think the people of Kent would think that a good thing. It would mean that Operation Brock was permanently available, but not permanently in place. It would be in place only in those periods when, otherwise, Kent would literally come to a standstill. We looked at where we were with the legislation and decided that we did not need sunset clauses. We can of course come back to the legislation at any point in the future—for example, in five years’ time, if we are fortunate enough still to be here—and a discussion can be had. If we have not used Operation Brock in all that time and it is asked why we have all these powers, maybe at that stage we can have that discussion, but I do not think it worth while having it now, because we need the powers to make sure that the system works as effectively as it should. Given that there is no time-limiting factor on any potential cause or reason for using Operation Brock, there seems to be no reason for a sunset clause.

I hope that I have put noble Lords’ minds at rest. I am very focused on the people of Kent and their amenity to use their local roads, as well as on the hauliers, so that they can get from A to B as efficiently and effectively as possible. I know that noble Lords have some reservations, so I shall write with further details to try to reassure them. In the meantime, I commend the regulations to the Committee.

Motion agreed.