Appendix 1: Correspondence (SI 2006/3276)
Passenger and Goods
Vehicles (Community Recording Equipment Regulation) Regulations
2006 (SI 2006/3276)
Letter from the Chairman to Dr Stephen Ladyman
MP, Minister of State, Department for Transport
I am writing as Chairman of the Lords Committee on
the Merits of Statutory Instruments. At today's meeting, the Committee
considered the Passenger and Goods Vehicles (Community
Recording Equipment Regulation) Regulations 2006 (SI 2006/3276).
Although we have cleared the instrument we were perturbed
by the need for it.
We understand that the instrument remedies a failure
to keep definitions current in domestic legislation. That failure
had created a loophole which resulted in enforcers being unable
to prosecute drivers' hours offences if the drivers were using
digital tachographs.
We also note that although digital tachographs became
mandatory in new vehicles from 1 May 2006, and another instrument
(SI 2006/1973) on a similar topic was made in July, the loophole
was only closed from 3 January 2007.
If the original legislation has been inoperable for
8 months we regard this as a serious deficiency. We would be grateful
to have your reassurances that, in the light of this case, the
Department has put adequate quality control measures into its
legislative process, so as to ensure that this is an isolated
incident.
16 January 2007
Letter from Dr Stephen Ladyman MP, Minister of
State, Department for Transport, to the Chairman
Thank you for your letter of 16 January. I note your
concerns about the delay in making this Instrument and that you
seek reassurance regarding the Department's quality control measures.
Taking quality control first, the Department's business
planning process for secondary legislation takes account of a
range of factors including limited resources and risk. Relative
priorities, and progress against business plans, are kept under
review throughout the year.
The background to legislation on digital tachographs
has been one of false dawns and confusion. Although digital tachographs
were first proposed some years ago, technological and EU legislative
difficulties delayed and obfuscated their introduction. After
years of uncertainty, and with relatively little notice, it finally
became mandatory to fit digital tachographs from 1 May 2006.
The potential loophole in domestic secondary legislation
relating to the definition of "Community Recording Equipment
Regulation" (CRER) only became apparent relatively late in
the day because limited resources were necessarily focussed on
other priorities. In particular, in this area, work on the Passenger
and Goods Vehicles (Recording Equipment) (Tachograph Card) Regulations
- SI 2006 No. 1937 - to address the possible fraudulent acquisition
and misuse of digital tachograph "driver cards" - was
considered to be a priority because of substantial demand for
such cards in anticipation of digital tachograph-equipped vehicles
entering service (to date, well over 150,000 such driver cards
have been issued by the DVLA).
Since the requirement to fit digital tachographs
applied only to new in-scope vehicles first entering service on
or after 1 May 2006, the number of digital tachograph-equipped
vehicles in service was expected to remain low for several months.
Against this background, the risk of the potential CRER loophole
being exploited was assessed to be low and it was not considered
appropriate to delay SI 2006 No. 1937 in order to address the
problem. For the same reason, given limited resources, closing
the potential loophole remained a relatively low priority subject
to ensuring we had done so before the numbers of new in-scope
vehicles increased significantly.
As anticipated, prior to this Instrument coming into
force, enforcers encountered only a handful of apparent drivers'
hours offences involving vehicles equipped with digital tachographs.
These were dealt with informally.
A further digital tachograph-related Instrument will
be required later this year to clarify requirements for the downloading
of data and to deal with a small anomaly between domestic and
EU legislation. Public consultation on proposals for this Instrument
was launched on 18 January.
Looking to the future, amendments to the European
Communities Act 1972 made by the Legislative and Regulatory Reform
Act 2006 are a welcome development in that they will reduce the
need for frequent updating of references to amended EU legislation
in our own secondary legislation.
23 January 2007
Letter from an Assistant Private Secretary to
Dr Stephen Ladyman MP, Minister of State, Department for Transport,
to the Committee's Adviser
Further to his letter of 23 January to the Chair
of your Committee, my Minister has been reviewing this issue in
detail and has obtained further assurances as to the processes
now in place to manage priorities and risk in relation to the
statutory instrument programme.
The main strands are these:
- a formal business planning process with service
level agreements between policy and legal teams setting out priorities
and projected timescales for the coming year (this covers statutory
instrument preparation together with other work - bill work, advisory
work and actual or expected litigation);
- regular business planning and progress monitoring
meetings throughout the year between policy and legal teams at
Senior Civil Service level;
- training for both lawyers and administrators
in the statutory instrument process and project planning of timetables
for policy formulation, drafting and formal and parliamentary
stages - this includes both formal training within the Department
and more widely, detailed written guidance at departmental level
(reissued within the last month) and at Whitehall level (issued
in the last month with senior departmental lawyers on the editorial
committee)
- informal mentoring and coaching also takes place
within divisions both by experienced SI drafters and Senior Civil
Service managers; and
- a robust process for second and third lawyer
checks of draft regulations designed to ensure the quality of
the final statutory instrument product.
Key elements of this package have been strengthened
over the last year and these are now reinforcing and improving
the management of risk and priorities.
Inevitably there are times when things do not go
as well as one might hope and the management process is designed
to tackle these when they arise as well as, hopefully minimising
their likelihood in the first place. There are also times when
pressures (both expected and unexpected) on resources mean that
priorities have to be settled, taking account of relative risk.
This was the case here in a year that saw among many other things,
new regulations on child car seat restraints, the enactment of
the Road Safety Bill which the legal team here was heavily engaged
in throughout its passage as well as the start of work on the
Concessionary Bus Travel Bill which is currently before Parliament.
The legal division in question also faced significant staffing
constraints - including the long-term absence of a key manager
- at a crucial stage of the work on digital tachographs which
only increased these pressures and required urgent re-prioritisation
of work. It was in this context that the decisions and consequent
delays in the making of these regulations which have concerned
the Committee were made.
Dr Ladyman wishes to reassure the Committee that
he fully appreciates the concerns they have expressed in relation
to the particular Statutory instruments being looked at here and
wanted to reassure himself that the quality assurance systems
in place are sufficiently robust for purpose.
I am sorry to write to you separately on this, but
my Minister did not want to delay his initial response to the
Committee whilst these points were pursued with the relevant policy
and legal teams.
30 January 2007
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