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Drivers’ Hours, Tachographs, International Road Haulage and Licensing of Operators (Amendment) Regulations 2022

Volume 825: debated on Tuesday 8 November 2022

Motion to Approve

Moved by

That the draft Regulations laid before the House on 5 July be approved. 10th Report from the Secondary Legislation Scrutiny Committee.

My Lords, these draft regulations will be made under the powers conferred by Section 31 of the European Union (Future Relationship) Act 2020.

The regulations implement fully some of the international road transport provisions in the trade and co-operation agreement between the European Union and the United Kingdom, entered into on 30 December 2020 and known as the TCA. These regulations are mainly about drivers’ hours and tachograph rules for most commercial drivers of lorries and coaches, but also involve the area of international haulage access to the UK.

Section 29 of the European Union (Future Relationship) Act 2020 provides a general implementation clause under which domestic law, including EU regulations retained as UK law, is, where necessary, interpreted in order to implement the TCA. On top of this, the changes being considered by your Lordships’ House today will normalise the relevant TCA provisions into UK domestic law to provide legal clarity. This will also enable UK enforcement officers to enforce against EU commercial drivers of in-scope lorries and coaches operating in the UK.

First, these regulations amend the retained EU Regulation 561/2006, which sets out driving time rules for commercial drivers. Secondly, they amend the retained EU Regulation 165/2014, which sets out rules around the installation and use of tachograph devices—recording devices used for the enforcement of driving time rules. Thirdly, they amend the retained EU Regulation EC 1072/2009, which sets out the rules on cabotage movements. They also amend the domestic Goods Vehicles (Licensing of Operators) (Temporary Use in Great Britain) Regulations 1996, which set out the rules for non-GB operators’ access to GB roads.

The EU drivers’ hours and tachograph regulations are central to keeping our roads safe and were retained as UK law by the European Union (Withdrawal) Act 2018. The retained EU drivers’ hours regulations set maximum driving times and minimum break and rest times for most commercial drivers of lorries and coaches. The consequences of driving any vehicle when fatigued can be catastrophic, of course.

The rules are enforced by the Driver & Vehicle Standards Agency and the police at targeted roadside checks, and by visiting operators’ premises. The principal tool used by enforcement officers is the record generated by the tachograph. The tachograph is a device installed in relevant vehicles that records the driving, rest and break times of the vehicle and its drivers.

The EU cabotage regulation was also retained as UK law by the EU withdrawal Act. For those unfamiliar with cabotage, it is the transport of goods between two places within a single country by a haulier registered in another country. Since 1 January 2021, international market access for hauliers operating between the UK and the EU has been governed by the trade and co-operation agreement. The general implementation clause in the future relationship Act means that domestic legislation has effect so as to implement the commitments in the TCA. However, in order to enable full and effective enforcement, in this case including in relation to visiting EU haulage operations, it is important to align the domestic legislation fully with the TCA’s provisions.

There are three broad categories of amendments that these draft regulations are making. The draft regulations will amend the retained EU drivers’ hours and tachograph regulations to include some specific international road transport aspects that were not required in the context of a no-deal exit from the EU without the TCA. That has quite limited effect.

The draft regulations will also amend the retained drivers’ hours and tachograph regulations to introduce prospective changes agreed in the TCA relating to the introduction of the smart 2 tachograph from August 2023. This includes bringing some smaller vehicles over 2.5 tonnes, used commercially for international journeys, into the scope of the drivers’ hours and tachograph rules from 2026.

Finally, the regulations will amend the retained EU cabotage regulation and the domestic goods vehicle operator licensing regulations to reflect the international road haulage access rights in the TCA. Currently, this legislation still reflects some of the market access arrangements from when the UK was an EU member state. However, the retained Regulation 1072/2009 has already been amended to reflect the reduced cabotage rights for EU operators in the UK following their usual type of arrival with an inbound international load. This is very much a tidying-up measure, which relates to undertaking cabotage operations when entering the UK without a load. Of those three areas, the area around the smart 2 tachographs is the most significant. The other two are very minor amendments that we are taking this opportunity to make.

Taken as a whole, this instrument will ensure that we have a level playing field for UK operators by ensuring that the haulage access rights for EU operators precisely mirror the rights given to UK operators in the trade and co-operation agreement. On that basis, I beg to move.

Amendment to the Motion

Moved by

That this House regrets that the draft Drivers’ Hours, Tachographs, International Road Haulage and Licensing of Operators (Amendment) Regulations 2022 introduce a requirement for new tachograph equipment in goods vehicles weighing more than 2.5 tonnes on international journeys without providing evidence of the availability and cost of that equipment.

My Lords, I am very grateful to the Minister for her comprehensive introduction to this SI. My reason for tabling this amendment is that, when the SI was tabled in July, I came across quite a lot of evidence of a lack of availability of some of the tachographs, lack of information about the costs, and lack of general information and, possibly, training for the people who would have to make this work.

I do, of course, support the regulations, and I congratulate the Government on them, but they have to be workable. Maybe things have moved on since July, but I have a few questions for the Minister which I am sure she will be able to answer. Most of the comments that I heard came from a magazine called Roadway, which comes from the road freight industry. It comments that, since January 2022, the DVSA has changed its approach and is—as the Minister said—enforcing these regulations at the roadside and during operator investigations, which is good. It is interesting that the traffic commissioners are now getting involved, which is also something quite new. Could the Minister say whether there have been any prosecutions yet, and outline how many investigations have been going on?

Secondly, what has the DVSA done to raise awareness of these requirements? I suggest that the Government have an obligation to ensure that these very complex regulations are widely known and understood. Have the drivers been trained to meet these requirements? If they have not, it is not going to work.

Regarding some of the comments in the Explanatory Memorandum, can the Minister give some idea of whether the smart tachographs—version 2—are available, whether they will they fit into all the types of vehicles that they are supposed to fit into, and how much they will cost? If there should be a supply shortage, the whole thing will not work and the Government will get a very bad reputation over it. I assume that the cost of installation is possible. It is often found that some of the bits of equipment that people are required to use do not fit into the vehicle concerned; it also applies to ships, but I will not bring that up today. I know that it is in the future, but light goods vehicles are going to be brought into scope in 2026, which, again, is probably a good thing but will make the equipment more difficult to install.

The next issue—I do not have very many more—relates to what is called triangulation, and cabotage. Paragraph 7.20 of the Explanatory Memorandum refers to

“removing the triangular rights of EU hauliers and the cabotage rights following unladen entry”

into the UK. It says that because this is the same as the reverse on the EU it is probably all right, but is there any intention of trying to renegotiate some of these things? One reads quite often of vehicles, maybe small ones used by theatre clubs or orchestras taking their equipment across when they want to tour many different member states. We have had debates in your Lordships’ House about that, but it is a complex consequence of leaving the EU. It is not a very big problem except for those who suffer it and I hope that the Government will look at that again.

Paragraph 7.22 of the Explanatory Memorandum refers to excluding combined transport. I question why combined transport is excluded, because if the truck happens to be loading or unloading a container from a ship or train that should be included, along with everything else.

Finally, the usual question from me and other noble Lords: if there is going to be a bonfire of EU regulations, are we going to have to go through all this again or will there be a new lot? I am sure the Minister will want to write to me on that, rather than answering today, but I beg to move my amendment.

My Lords, I will briefly raise some points that follow on from what the noble Lord, Lord Berkeley, has said. They were raised by the Secondary Legislation Scrutiny Committee and are just to put my mind at rest.

In particular, on page 16 of its 10th report the committee raised a number of questions in paragraph Q2. The department seems to agree that these questions are causing some concern, and has confirmed that industry raised these concerns. The committee asked:

“What are industry’s concerns, is it the cost of the new equipment or are there supply issues that will make compliance by the deadline set difficult?”

In its answer, the department says that it is both: the cost of the new equipment and meeting the deadline. Can my noble friend the Minister put my mind at rest on whether the cost issue has now been resolved? Given that the department realises that there will be “only a few months” before the supply and installation “into newly registered vehicles”, can she confirm that the deadline will be met, or will the department be fairly flexible and allow them more time in this regard?

The department says:

“If there is a supply issue it would be felt at European level not just in the UK.”

But obviously the House is concerned about how that is to be addressed in this country. I therefore ask for confirmation: how does the department expect to address this issue of supply? Are we perhaps getting a little ahead of ourselves and should the deadline for when they should be fitted be a little more flexible than it has been?

The department says in its concluding paragraph on question 2:

“The Department will work with industry to raise awareness of the new requirement.”

Perhaps my noble friend will be good enough to tell us how that is to be achieved.

My Lords, I thank the Minister and the noble Lord, Lord Berkeley, who pays such good attention to government legislation. Some of my comments will reflect his concerns. This is possibly our third attempt at transposing various bits of EU tachograph rules into post-Brexit British law.

I want to use this opportunity, reflecting the noble Lord’s concerns, to express the fact that I am seriously concerned that some bright ministerial spark in a recent Government thought it a good idea to put a sunset clause on all EU law now transposed on to our statute book. That will mean that we have to go through it all over again, having spent so many months on it.

I feel great sorrow for and sympathy with officials and the Minister for the amount of time they must be devoting to finding neat, or less neat, solutions to this issue. It must be a depressing and nugatory experience. Even worse, it is one that, in this case, the business community is queuing up to oppose because it makes its job even harder. I wish we had time to look at the future of transport, as it needs legislation, and plan for the future rather than re-treading the past.

Turning to the detail of this SI, I have some questions and comments. Paragraph 3.1 of the Explanatory Memorandum says that it was originally laid on 23 June then withdrawn on 29 June. Can the Minister explain why it was withdrawn? Was it connected to the lack of version 2 of the smart tachograph? The new smart tachographs are superior because they allow better data exchange so that enforcement officers can download data without stopping the vehicle. It will also be more difficult to falsify the data in future.

If I have understood correctly, it seems that there will be no obligation for older UK vehicles making only domestic trips to have the updated tachographs. Only vehicles travelling to the EU will have to have them. If so, effectively we will have two standards applied to vehicles on our roads. These standards are very much connected, as the Minister made clear, with safety. Driving safely is an issue not only for drivers going to the EU; driving as safely as possible affects every driver on our roads and the tachograph is an essential part of that. I am concerned that we are going to have two separate standards of enforcement and two separate standards of evidence available to enforcement officers. I am also concerned that we will be allowing many people participating in our haulage industry to lag behind the rest of Europe on safety standards.

The amendment from the noble Lord, Lord Berkeley, refers to concerns on timing. As the noble Baroness, Lady McIntosh, made clear, this SI has been subject to a report by the Secondary Legislation Scrutiny Committee. In appendix 2, it states that the

“main tachograph manufacturer will not gain type approval for their version 2 until April 2023”.

My question is: are there no other manufacturers? If this is, effectively, an EU-wide regulation, surely there are other manufacturers across Europe—someone must be making them if the regulation exists. Why are there delays in the type approval? I know that there have been delays in getting a lot of type approval in recent months, but it would be nice to know why there are delays. The Government seem to believe that there is a pragmatic solution. They argue that, as a pragmatic solution worked last time, a pragmatic solution will work again this time. I trust that they are correct on this.

The Secondary Legislation Scrutiny Committee report also raises the important point about the need for an awareness-raising campaign to ensure that operators, especially small companies, are aware of the changes. As the noble Lord, Lord Berkeley, said, these are complex, so I ask the Minister for the details. Will there be government funding for that awareness-raising campaign?

I welcome the eventual extension of the tachograph requirements to light goods vehicles. An examination of road accidents statistics shows that there is a significant number of such vehicles involved in accidents and that tiredness is undoubtedly a factor.

Paragraph 7.20 of the Explanatory Memorandum makes it clear that:

“The UK is removing the triangular rights of EU hauliers and the cabotage rights following unladen entry, because”

these rights were not agreed in the TCA, as the Minister said. I can understand the logic of this, but I regret that it is depressing and another step in our economic isolation. It is depressing that agreement could not be reached in the TCA; we are becoming economically isolated, and we are in a state of decline as a result. It will have an adverse impact on the supply of goods in our shops. Hauliers still have a shortage of UK drivers, and, even at the margins, those hauliers who were integrating additional loads into their schedules but who will not be able to do so in future will reduce—maybe not by a vast percentage—the number of loads that can be carried and the supply of goods to our shops. At some point in the future, the UK Government will need to start having sensible discussions with EU countries about improving our trading relationships, and I hope that this happens sooner rather than later.

My final point is about the lack of an impact assessment. The DPRRC wrote a report recently about the decline of impact assessments, and this is a matter for which we should have had an impact assessment.

I, too, thank the Minister for her explanation of the purpose and content of these regulations, and for her kind words, as well as those of my noble friend Lord Berkeley, in the previous debate.

We are not opposed to the SI, since the regulations are based on existing requirements made under the trade and co-operation agreement. My noble friend Lord Berkeley has spoken to his amendment to the Motion, which is in line with views expressed by the Secondary Legislation Scrutiny Committee to the effect that:

“The industry has expressed concerns about the cost and availability of the ‘smart tachograph 2’ which is currently in short supply”.

If the Government are opposing my noble friend’s Motion, I assume that in response they will provide evidence of the availability and cost of the new tachograph equipment, what steps they are taking to ensure the required availability of the new tachographs and why they believe that the concerns expressed by my noble friend and the industry will not materialise.

The Explanatory Memorandum reminds us that

“There were availability and timing issues with the implementation of the smart tachograph 1 in June 2019”,

so this is not a new or unexpected issue. The Government’s Explanatory Memorandum states that they came up with a pragmatic solution then, and that:

“If there are difficulties on this occasion, the Department would again work with the Driver and Vehicle Standards Agency and industry to come up with similar pragmatic solutions.”

Would not the best solution, having had prior warning at least three years ago, be to make sure in the intervening period that there would be no similar availability issues? Who makes the new smart tachograph 2, and where? Is it the same organisation that made the smart tachograph 1?

The Explanatory Memorandum also says:

“If there is a supply issue it would be apparent at European level not just in the UK and action at the EU level might be taken.”

That is interesting. The Government went for a hard Brexit to be able to make their own decisions, unencumbered by having to have regard to what the EU thought, wanted or was doing.

The regulations implement parts of the EU-UK Trade and Cooperation Agreement in relation to international road transport provisions in the TCA, including international haulage access to the UK, drivers’ hours rules and the requirement for specific new tachograph equipment—the smart tachograph 2 —in goods vehicles and coaches on international journeys. Some smaller vehicles over 2.5 tonnes, and used on international journeys, are brought into the scope of the drivers’ hours and tachograph rules from July 2026.

On the issue of cost, the Explanatory Memorandum states that

“industry sources have raised concerns about the cost of installing a tachograph for the first time into smaller vehicles by 2026 and the lack of knowledge by some smaller operators of this new requirement.”

The Government’s Explanatory Memorandum is, frankly, a bit dismissive of the concerns about availability and cost, stating that they would not affect the content of this instrument that we are discussing, and that the concerns will be discussed with industry. If that is the case, I hope that it will not be in the same way as the Government clearly have not already.

The new tachograph equipment records a vehicle’s position, including when it crosses borders and when it is loading or unloading. It also allows for the down-loading of data without stopping a vehicle. What will be the cost of this new tachograph equipment? To pursue other points made by my noble friend Lord Berkeley, have the Government assessed what impact these new costs will have on the industry? The impact assessment states:

“There is no, or no significant, impact on business”.

On the basis of what figures and other evidence did the Government reach this conclusion?

One final point that I would like to make relates to what was said when this instrument was debated in the Commons Committee a week ago. We raised the issue of driver welfare. In response, the Minister in the Commons said that it was right to focus on the issue. Continuing, he said that

“the Government have now topped up to £52 million the investment that we have been making in the industry to support better facilities for drivers”.—[Official Report, Commons, Third Delegated Legislation Committee, 1/11/22; col. 6.]

That tends to be the Government’s stock response across the board to any query about inadequate facilities or services—that is, we have spent, or are spending, X millions of pounds. Could I therefore please have a breakdown in writing of exactly what improvements, in what facilities and where, that £52 million is meant to deliver; the extent to which it will or will not actually deliver those intended improvements; and the total amount of money that would need to be invested by the Government to bring the level of all facilities for drivers up to the standard which, presumably, it is intended the £52 million will deliver in the locations in which it is being spent, and for the purposes for which it is being spent?

I am grateful to all noble Lords who took part in this relatively short debate. I will try to answer as many questions as possible, and will certainly write. I am also grateful to the noble Lord, Lord Berkeley, for tabling his amendment; it gives noble Lords the opportunity to delve a little further into some of the issues that these regulations raise.

The trade and co-operation agreement commits the UK to the requirement that small goods vehicles weighing more than 2.5 tonnes used commercially for hire or reward for international journeys need to comply with the EU drivers’ hours rules. I stress that “international journeys” is one of the important factors here, because it means that the requirement does not apply to the vast majority of commercial vehicles, which operate only domestically. The number of smaller goods vehicles operating internationally is very small, and even for HGVs, it is not particularly large; most movement across the short straits, for example, is done by EU hauliers. However, some vehicles will need to comply with the EU drivers’ hours rules and to install and use a smart 2 tachograph from July 2026.

This gives the industry, particularly small vehicles weighing more than 2.5 tonnes, four years to prepare for this transition. It will have known about it for some time and will have four years to think about how the cost can be borne over that period. Regardless of this statutory instrument, UK operators of the vehicles concerned must install a smart 2 tachograph by 2026 if they are to operate legally in the EU. If they fail to do this, they will be subject to roadside stops, fines and other enforcement when abroad. The statutory instrument enables UK enforcement authorities to check and enforce against relative non-UK light goods vehicles—I suspect there will probably be more coming across than there are UK vehicles going abroad.

Noble Lords will remember that we have already discussed in your Lordships’ House the issue for vehicles of more than 2.5 tonnes. It is important that we continue with this. For example, larger vans sometimes come from Poland, Romania and Bulgaria, and they often have sleeping compartments in them. It is therefore very important that UK enforcement authorities are able to check drivers’ hours records contained in those tachographs.

The number of small vehicles that this is likely to cover is very small. There are 554 operator licences in place, but of these licences a total of 1,701 vehicles are authorised for international operation. That is out of a total of nearly 2 million in the UK, so we are talking about 0.09% of small vans, et cetera.

Obviously, the matters under discussion today were already obligations under the trade and co-operation agreement. This is very much a tidying-up exercise to make sure that our legislation is clear for enforcement. We have engaged with industry over a long period, particularly after the TCA was agreed, and therefore it well understands the changes that are coming down the track.

A number of noble Lords asked about awareness campaigns. We are working with the industry constantly on such matters. The traffic commissioner often sends out regulatory updates which advise those with operator licences about these sorts of changes that are coming down the track, and of course we publicise these on GOV.UK.

On impacts and costs, I believe these tachographs are likely to cost around £1,200 each—that is for buying and installation. As I mentioned, that can probably be borne over a number of years, and it is needed only for those vehicles that are travelling internationally.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Berkeley, asked about enforcement. Of course, the DVSA has long been enforcing these matters. It is difficult to separate matters that are raised in this SI from the DVSA’s day-to-day enforcement activities because it is always enforcing against drivers’ hours infringements, whether for UK hauliers or EU hauliers, as well as all other infringements. I will include in my letter to the noble Lord some interesting stats around the amount of enforcement that the DVSA does; I have been incredibly impressed by the work that it does.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Berkeley, both raised cabotage. Your Lordships will recall that, when the Government relaxed the cabotage rules, we had a number of debates in which noble Lords tried to convince me that it was a terrible idea. Eventually, I agreed with them and thought that we should stop doing extended cabotage, because the impact on UK hauliers was quite significant—but only in very localised places, particularly around the short straits. Relaxing cabotage did its thing when we were at the height of the challenges around not having enough HGV drivers, but I believe that we are now right to make sure that regulations in the UK mirror those of the EU, particularly regarding truckers arriving without a load and then going on to do cabotage. That should not be allowed: it is not allowed for UK hauliers and it should not be allowed for EU hauliers.

The noble Baroness, Lady Randerson, mentioned a number of things that the Government should be doing around ensuring supply, looking at the timelines, et cetera, but she will understand that this is not our decision. We are being led by the EU on this one, so it will be up to it to look at supply, because vehicles across the EU will have to put these smart 2 tachographs in. Unfortunately, we are merely bystanders. Of course, we can maintain our conversations with the EU, but the EU will be thinking about it for the industry as a whole and will reach conclusions about the availability or otherwise of smart 2 tachographs.

As the noble Lord, Lord Rosser, raised, we have to be pragmatic. It may be that the type of enforcement done by the DVSA is appropriately pragmatic, understanding that some people will not have smart 2 tachographs and that they will still have smart 1 tachographs. We are not there yet, but it is not for the UK Government to unilaterally decide that we will suddenly not do this because the supply of these smart 2 tachographs is not necessarily assured. We cannot do that. Much as I would like us to be able to, that would break the TCA, which we would not want to do.

The noble Baroness, Lady Randerson, talked about there being dual standards for tachographs and that being quite confusing. That situation already exists; there are different types of tachographs in different types of vehicles. It has not historically caused an issue for enforcement.

I am conscious that I have been talking for quite a long time now. I am sure there are other issues that I should definitely raise now, but I will write to the noble Lord, Lord Rosser, about driver welfare. It is probably a little beyond the debate today, but it is a massively important issue, and I want to make sure that I have the latest advice for him. On that basis, I commend the regulations to the House.

My Lords, I am grateful to all noble Lords who have spoken. It has been really good to hear so many questions to the Minister, and I am grateful to her for the answers she has given—most of them, anyway.

I still find it extraordinary that although we have this legislation which requires tachographs to be installed, she could not seem to tell us how many suppliers there are. In this country, we have some pretty good examples of monopoly suppliers of large volumes of things that have gone horribly wrong, particularly in the health service. This kind of equipment should be available from many manufacturers, and I am not quite sure why we can have only the ones that the EU says. We obviously have to comply, but there we are. I think that a cost of £1,200 plus installation is pretty high for many operators. I am sure they will be able to do some financial wizardry with it, but it is still quite a lot of money, though it is for a good purpose.

I worry about the cabotage issue, because we still have traffic problems at Dover and many other places quite often. The freight industry is short of drivers. We used to have a situation in which probably only 10% of cross-channel road freight was done by British drivers. Whatever we think, we have to find the drivers somewhere if we cannot find them here, otherwise we will not get the goods across.

I hope we will keep this under review and I look forward to the Minister’s letter, which may be quite long. I beg leave to withdraw my amendment to the Motion.

Amendment to the Motion withdrawn.

Motion agreed.