Date laid: 21 January 2021
Parliamentary procedure: negative
These Regulations have been laid by the Department of Transport to mitigate risks to critical supply chains by extending, to 1 April 2021, two relaxations of the normal rules on Heavy Goods Vehicles Drivers hours, the net effect of which is to increase the fortnightly driving limit from 90 hours to 96 hours. These relaxations are not restricted to port areas or to essential supplies, and the definition of when they can be used, “when necessary”, is very vague. There is also some blurring in this policy between the responsibilities of the driver and the operator in deciding when to use the extended hours, and we are concerned that drivers may feel under pressure to use them. A submission from UNITE the Union illustrates the problems likely to arise. The sector is very diverse, with both employed and self-employed drivers, and the balances of risks and advantages may differ between these groups. Although a contingency provision may be needed, we were not clear about the conditions in which these exemptions are intended to be used and where the responsibility for implementing these decisions lies. The House may wish to ask the Minister to provide a fuller explanation.
These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1.These Regulations have been laid by the Department of Transport (DfT) to mitigate risks to critical supply chains, due to coronavirus and possible border disruption. The Regulations extend two relaxations of the normal rules on Heavy Goods Vehicle (HGV) Drivers hours to 1 April 2021. The Regulations were laid with an incorrect version of the Explanatory Memorandum (EM) which, among other things named the wrong Minister, and has since been replaced.
2.A submission from UNITE the Union illustrates the problems likely to arise, and is published in full on our publications page.
3.In relation to journeys within Great Britain (GB), the relaxation applies to HGV drivers in all sectors and allows the replacement of the requirement to take a full weekly rest period of 45 hours in a two-week period, with an alternative pattern of weekly rest periods which would enable the driver to work two six-day weeks. The net effect is to increase the fortnightly driving limit from 90 hours to 96 hours. More detail is set out in the guidance, including the forms that employers are required to complete stating which exemptions they have used.
4.In relation to journeys between GB and the EU or GB and Northern Ireland, different relaxations can apply, although the options cannot be mixed:
(a)Replacement of the EU daily driving limit of nine hours with one of 11 hours.
(b)Reduction of the daily rest requirements from 11 to nine hours, together with a relaxation on the use of the ferry/train derogation and to increase the maximum number of the interruptions to a daily rest period from two to four (not exceeding an accumulated period of three hours).
(c)Lifting the weekly (56 hours) and fortnightly driving limits (90 hours) to 60 and 96 hours respectively.
(d)Postponement of the requirement to start a weekly rest period after six 24-hour periods, for after seven 24-hour periods, although two regular weekly rest periods or a regular and a reduced weekly rest period will still be required within a fortnight.
(e)In addition, drivers who are driving only in Kent on journeys out of the UK via the Channel Tunnel or Dover, are permitted to break 45-minute rest breaks into up to three blocks of 15 minutes each, which together are at least 45 minutes (within a 4.5 hour period). This is designed for use when drivers are stuck in the queuing system in Kent.
5.The EM and guidance emphasise that the employers remain responsible for the health and safety of their employees and other road users, and that drivers should not be expected to drive while tired.
6.The instrument was brought into immediate effect to extend the provisions of an administrative measure made by DfT Ministers, that came into effect on 23 December 2020, under EU law, to last until 21 January 2021 (the maximum of 30 days allowed). DfT told us:
“The exception, introduced on 23 December 2020, was effected via a ministerial decision. The extent of the exception was published and circulated to a number of organisations, including police, other enforcement agencies, trade associations and unions, devolved governments and other government departments (including those linked to specialised supply chains). A notification about the exception was sent to the European Commission, which circulated it to Member States, so it would be recognised abroad.”
We note that the list of bodies notified does not include Parliament.
7.A statutory instrument is now required to extend these provisions from 22 January to 31 March 2021. DfT states that the relaxations continue to be required because of both delays at the borders and the reduction in driver numbers due to COVID-19.
8.The EM and the DfT guidance both state that the relaxation should only be used where necessary, otherwise the normal drivers’ hours rules are to be followed. We therefore asked DfT how “necessary” was to be interpreted:
“‘Necessary’ has not been defined explicitly. However, the published guidance states the following:
The drivers’ hours and working time rules are in place to protect road safety and the working conditions of drivers and to reduce the risk of drivers being involved in fatigue-related accidents. As such, any relaxation of these rules should only be considered where genuinely necessary and when other supply chain management interventions are unable to alleviate issues. The Department for Transport (DfT) wishes to make clear that driver safety must not be compromised. Drivers should not be expected to drive whilst tired–employers remain responsible for the health and safety of their employees and other road users.
For the relaxation relevant to international transport the published notification states that:
It [the relaxation] should be used when there are significant unanticipated or substantial delays, related to border crossings and checks related to cross-Irish Sea transports.”
9.We note that—unlike SI 2021/109 (see page 6 below)—which identifies certain trigger criteria for the use of its contingency measures, the key definitions for the use of these relaxations are more vague.
10.The legislation is all framed in relation to the driver. Regulation 2(b) states:
“a driver may rely on a temporary exception …where a driver has reasonable grounds to believe that there are exceptional circumstances which makes compliance with Articles 6 to 9 of the Drivers’ Hours Regulation not reasonably possible.”
“Exceptional circumstances” are defined as the circumstances arising from the COVID-19 pandemic or the withdrawal of the UK from the EU, which adversely affect the carriage of goods by road.
11.Other considerations, however, such as the imperative to make deliveries, the chance of an increased pay check, and a desire to meet the employers’ expectations, are also likely to influence such decisions.
12.The sector also includes self-employed drivers, and while they may welcome the extra hours, we are concerned whether they will be able to assess properly the effects of prolonged fatigue on their own driving performance.
13.UNITE makes the point that, although temporary, this provision will be in place for over three months and that fatigue is cumulative:
“The impact of fatigue is well documented and for drivers it can be the equivalent of being under the influence of alcohol. UNITE believes that prolonged long working hours without the ability to take proper rest away from work will result in serious risks in road safety, for HGV drivers and all road users. “
14.Paragraph 14.1 of the EM states that DfT will monitor use of the relaxations within GB by requiring operators to inform DfT, by completing a form, of their intention to use them and then later how they were used. This suggests that the use of these relaxations is to be planned by the employer, rather than the decision being the responsibility of the driver as regulation 2(b) appears to indicate.
15.We also note that the forms ask about the relaxation used and the loads carried but not about the circumstances which made the use of these provisions “necessary”. We therefore asked DfT how use of the system will be assessed to ensure that the additional hours allowed are not simply exploited for commercial advantage. DfT replied:
“The Driver and Vehicle Standards Agency checks [DVSA] operator records including tachographs and has information about which operators notified the Department about the use of the relaxations. It is able to make further enquiries about the circumstances related to information notified to the Department and to check a notification was made when tachograph records indicate extra driving. The Agency can also act on information received to check complaints about the use of relaxations.”
16.The House may wish to ask for an analysis of the outcome of the DVSA checks to be reported to Parliament so that members can form a view as to whether the system has been abused. Simpler, clearer legislation, however, might remove the need for so much administration.
17.The EM states that the relaxations were brought in at the request of industry and have been used by operators needing some additional flexibility to mitigate problems caused by port congestion and coronavirus-related absences. We therefore asked DfT who had been consulted and whether any drivers’ representatives had been included DfT responded:
“Relaxations to drivers’ hours rules were sought by a number of individual firms, representative bodies and Defra (in the context of the food supply chain). Unite the Union was consulted informally - and for the record was not in support of the relaxation as made.”
18.We asked UNITE to explain their concerns:
“The issues in Kent have been widely reported but the knock-on effect of the border issues is now impacting on domestic transport. We have received reports from drivers who simply cannot find places to park to take statutory rest breaks due to service areas being full of drivers trying to get Covid tests and customs documents checked. In one instance, over 200 drivers were queueing outside of Thurrock services which meant that other drivers could not park safely.
Statutory rest periods for drivers can be within the working day, daily rest periods and weekly rest periods. There is already great flexibility in the rules which allow reductions in all but the 45 minute breaks drivers must take during their working day. The weekly rest period is what is relaxed in this Statutory Instrument. It is worth pointing out that the standard weekly rest cannot be taken in the cab of the vehicle, the drivers workplace. However, a reduced rest can be. This means that drivers will be expected to spend their working and rest periods at their place of work. Whilst there have been great advances over the years in cab comfort, working and living in an HGV cab for weeks on end will inevitably result in driver fatigue. There is very little sound insulation and other vehicles moving in the vicinity will mean drivers cannot get proper rest. Due to necessary Covid controls drivers are also limited with any activities they can take outside of the vehicle such as relaxing away from work, eating or exercising.
19.We are aware of the potential for difficulties in the supply chain to arise because of delays at borders and a shortage of drivers due to the effects of COVID-19 and acknowledge that contingency measures are required. The normal restrictions on drivers’ hours are based on accident statistics, for safety reasons we would not wish to see their relaxation become permanent.
20.The provisions of these Regulations are not restricted to port areas or to essential supplies, and the definition of when they can be used, “when necessary”, is very vague. Tying use of the exception to “exceptional circumstances” sounds like a limit, but as they are in turn defined as “circumstances arising” from the pandemic or the UK’s withdrawal from the EU, its application can be very broad indeed.
21.There is also some blurring in this policy between the responsibilities of the driver and the operator in deciding when to use the extended hours, and we are concerned that drivers may feel under pressure to use them. Although a contingency provision may be needed, we were not clear about the conditions in which these exemptions are intended to be used and where the responsibility for implementing these decisions lies. The House may wish to ask the Minister to provide a fuller explanation.
Date laid: 1 February 2021
Parliamentary procedure: negative
This Order requires all Heavy Goods Vehicle drivers, and any passengers, to provide evidence of a recent negative COVID-19 test result as a condition of access to the coastbound carriageways of the motorway network in Kent.
It also introduces the Expedited Return Scheme, as a contingency measure, to allow for the prioritisation of outbound empty goods vehicles moving from the UK to the EU in the event of severe disruption in Kent, enabling the vehicles to restock and return speedily with fresh supplies. The policy objective is clearly explained and well-argued in the Explanatory Memorandum and seems pragmatic in current circumstances. We regret, however, that—once again—many key policy elements are not included in the legislation that is subject to scrutiny, but published in policy statements and guidance.
This Order is drawn to the special attention of the House on the grounds that that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.
22.This instrument, laid by the Department for Transport (DfT), requires all Heavy Goods Vehicle (HGV) drivers, and any passengers, to provide evidence of a recent negative COVID-19 test result as a condition of access to the coastbound carriageways of the motorway network in Kent. Drivers who are not able to produce evidence of a negative COVID-19 test for themselves will under this Order be liable for a £300 Fixed Penalty Notice. In practice, the burden should be minimal since the French authorities already require this. The original Order that this instrument amends will expire on 31 October 2021.
23.This Order was originally laid as SI 2021/62 on 21 January to come into effect on the same day. SI 2021/62, however, did not reflect the version signed by the Minister on 20 January, as some wording had been omitted. It was therefore replaced with the correct version, as SI 2021/109, laid on 1 February. We would welcome an assurance that steps are being taken by the department to ensure that mistakes such as this are not repeated.
24.The instrument also introduces the Expedited Return Scheme (ERS), which will allow for the prioritisation of outbound empty goods vehicles moving from the UK to the EU in the event of severe disruption in Kent, enabling the vehicles to restock and return speedily with fresh supplies. Gibraltar relies on the UK for approximately 50% of its food supply, so this scheme for expediting vehicles will additionally apply to Gibraltar-bound groceries. The instrument also provides for checking compliance and enforcement of these measures through fines.
25.DfT states that ERS is a contingency measure to enable the Department to respond when difficulties occur (for example, if the French authorities again closed the border for 48 hours as they did in late December 2020). The criteria for exercising these powers are set out in a separate document, which was not published until 29 January. They include:
26.DfT states that the Secretary of State will turn the measures off again as soon as traffic flow rates recover, or indicators show that demand and supply issues are reducing. The measures will be suspended if they cause congestion in the contraflow or otherwise impede the Kent Traffic Management systems.
27.There is no conflict between this scheme and the existing prioritisation of perishable goods through Kent, as the two schemes are triggered differently: perishable goods will be prioritised if there are traffic delays, whilst empty trucks require traffic delays and falling food supply for two consecutive days before the scheme is implemented. In the circumstance that ERS causes unacceptable rises in traffic volumes it will be turned off but perishable goods will continue to be prioritised.
28.DfT states that the scheme must be simple to administer and enforce and proposes limiting the number of ERS permits to 300 per day (plus up to an estimated 10 per day Gibraltar-bound vehicles under the Prioritised Goods Scheme) to balance the efficient operation of the Kent Traffic Management systems against the maximum benefit for food supply.
29.As the large supermarkets have around 95% market share across the whole of the UK, DfT intends to limit access to the ERS permits to the nine largest of them. This means that DfT can contact the companies directly by email or telephone in the event of the scheme being activated. The policy intention is to guarantee essential supplies but there may be commercial disadvantage to smaller suppliers as a result.
30.The policy objective is clearly explained and well-argued in the EM and seems pragmatic in current circumstances. We regret, however, that—once again—many key policy elements are not included in the legislation that is subject to scrutiny but published in policy statements and guidance.
1 SLSC scrutiny evidence page: .
2 DfT, ‘Temporary relaxation of the enforcement of the retained EU drivers’ hours rules: all road haulage sectors within Great Britain’ (20 January 2021): [accessed 2 February 2021].
3 DfT, ‘Temporary relaxation of the enforcement of the retained EU drivers’ hours rules: international and Great Britain to Northern Ireland carriage of goods’ (20 January 2021): [accessed 2 February 2021].
4 DfT: “Operators must notify DfT if this relaxation is used by completing an and emailing a copy to . A completed must then be emailed to one week after the end of the period of relaxation.”
5 Heavy Commercial Vehicles in Kent (No. 3) Order 2019 (, as amended by ).
6 Defra, Expedited Return Scheme (ERS) (29 January 2021): [accessed 2 February 2021]. The EM said that this document would be published on 21 January 2021, the day the instrument came into effect, but it did not appear until 29 January 2021 — we also regard this as poor practice.