14.We, along with other members of the House, had raised a number of concerns about the draft Motor Vehicles (Driving Licences) (Amendment) (No. 2) Regulations (“the No. 2 Regulations”). When duplicate Regulations, the Draft Motor Vehicles (Driving Licences) (Amendment) (No. 5) Regulations 2021 (“the No 5 Regulations), had to be laid following a procedural error in the House of Commons, we were astonished that the Department for Transport (DfT) had failed to revise the Explanatory Memorandum (EM) accompanying the No. 5 Regulations to address these concerns.
15.The policy objective of the Regulations was to increase the number of driving test slots available for Heavy Goods Vehicles (HGVs). The instrument proposed to achieve this by removing a requirement for car and van drivers to take the B+E test before they could tow heavier trailers, such as caravans. Our principal concern related to a lack of evidence to support DfT’s assertion that this change would not compromise road safety. Despite the No. 2 Regulations being laid on 16 September 2021, the risk assessment, which was to be included in an Impact Assessment (IA), was not available to the House when the No. 5 Regulations were debated on 14 December, some three months later (and is still not yet published). Another concern was the length of time before the effect of the Regulations would be reviewed, raising questions about how quickly DfT could identify whether they had caused towing accident rates to increase and take appropriate mitigating action.
16.We therefore asked the responsible Minister, Baroness Vere of Norbiton, to provide further explanation at an oral evidence session on 11 January 2022. The full transcript is published on our website.
17.In the debate on the No. 5 Regulations on 14 December, members expressed concern that the failure rate for the B+E trailer driving test was consistently 30%, yet these Regulations would permit those who had failed it to tow trailers on the road. The Minister confirmed that was true but said that modular training on towing skills being developed by DfT would be a better alternative to a test. The Minister indicated that this was still a work in progress, that the content and providers of such courses had not yet been agreed, but that the courses would include practical manoeuvres. We asked the Minister how much motorists would have to pay for such courses, and whether the insurance industry would encourage participation by offering lower premiums. We question how many drivers would attend voluntary courses, if they are expensive or if there is no other incentive for them to do so.
18.We asked what other solutions had been considered – for example, suspending the B+E test temporarily. The Minister said that a temporary suspension would not have provided the HGV training sector with sufficient certainty to be willing to invest in the expensive vehicles required, and that removing the test would allow the Department “to market the training more effectively”.
19.We also asked whether DfT had considered setting a different requirement, such as only allowing someone to tow a trailer after they had held a full licence for two years. The Minister replied that that option had not been considered as DfT had a general policy of not pursuing “graduated driving licences”.
20.We remain concerned that none of the reasons given for these policy choices reflect consideration of how they will affect road safety.
21.In correspondence, the Minister had told us that DfT was “unable to discern from available data if there is a causal link between road safety and the B+E test”. As we pointed out in our 23rd Report, that can equally be taken to mean that DfT cannot demonstrate the absence of a link between the test and current low accident rates. In effect DfT has no clear view of whether removing that test will result in more injuries.
22.In oral evidence the Minister explained that the data collected is extensive, but that DfT cannot interrogate the current STATS19 data in every circumstance to come up with evidence-based policy. She said the Department could identify trends from the data but not cause and effect, as accident data can be influenced by the subjective view of the police officer attending the scene as to the cause.
23.We have recently asked for accident data in relation to several DfT instruments on driving matters, but each time the Department has responded that it does not have the relevant statistics. We therefore asked what steps the Department was taking to improve the provision of data. She said: “There is a new road safety framework coming up in due course and we will look at how we improve the data, what are the big gaps”. We were surprised at the length of time required to make changes to STATS19: data from recent changes to the system will not become available until 2024.
24.Although the Minister explained that, for the post-implementation review of these Regulations, DfT would be collecting more specific information using surveys of instructors and people involved in towing accidents, we remain concerned that the Regulations set that review date at three years. Our 23rd Report suggested that if the data were uncertain, 12 months would be a more appropriate review period, because each addition to these statistics actually represents a road accident involving an injury or a fatality.
25.The Minister explained that the three-year period was dictated by the STATS19 cycle: accident data for the previous year is collected from police forces around the country each January, the information is then reviewed and finally published in September. Because the towing accident figures are small, two years’ data would be needed to be able to detect trends. The earliest point at which reliable STATS19 information could be available, therefore, would be in September 2024.
26.We were surprised, given current technology, that more rapid data collection was not feasible and questioned whether the insurance industry would have better information that could be analysed by type of vehicle etc. We also pointed out that the STATS19 page on the Gov.UK website indicated that accident data involving personal injury was posted within 30 days of the incident and that quarterly reports of the raw data were available.
27.The Minister offered to respond to some of our questions in writing. Her letter is published at Appendix 1. She explains that quarterly reports are no longer provided but provisional STATS19 data at six-monthly intervals is available. We regard this as a retrograde step. It also explains that the new Collision Reporting and Sharing system (CRASH) has been rolled out to half the police forces in Great Britain and should provide reliable data within 90 days. In addition, DfT has recently consulted on the creation of a new Road Collision Investigation Branch to conduct thematic investigations of road collisions to identify trends and emerging issues. We are encouraged that the statistical deficit about which we have raised concerns is being addressed, but note that no date is offered for when this improved data will start to appear in EMs.
28.Our further concern in relation to these Regulations is a perception that DfT may have been so focused on the need to increase the number of HGV drivers that the wider consequences of removing the B+E tests were not fully assessed.
29.The Minister confirmed that her letter of 18 October included information that had been produced after the No. 2 Regulations were laid. The Minister agreed with us that policy should be evidence-based but told us that before laying the No 2 Regulations she had seen “limited analysis” and the trailer safety report. She said she had also had the benefit of discussions with the All-Party Parliamentary Group on Trailer and Towing Safety.
30.We asked the Minister what evidence had persuaded her that a question in a theory test could effectively replace a practical test. The Minister replied that questions in the driving theory test were aimed at increasing general awareness of the challenges of towing and of manoeuvres such as reversing or uncoupling. She stated that manoeuvres training would be included in the voluntary courses, but we take the view that whether that is an effective replacement for the test depends entirely on the level of take up.
31.One of our primary concerns was that, whatever information may have been available to the Minister, it was not shared with Parliament or the public. The data included in an IA should not only influence the policy-making process but also inform others about why decisions were taken and what other options were considered. None of that information was available to the House at the time of the debates on the No. 2 and No. 5 Regulations, and questions were raised during the debates which should have been answered by an IA.
32.What was not clear to us was why the improved information set out in the Minister’s letter of 18 October 2021 was not included in the EM accompanying the No 5 Regulations, or why the draft IA submitted to the Regulatory Policy Committee on 25 November, or key data from it, was not made available to the House before the debate on the No. 5 Regulations. When asked about this during the oral evidence session, the Minister agreed that, on reflection, she should have revised the EM.
33.We are troubled by this indication that ministers and their officials may not fully understand the importance of providing Parliament with all the information, at the appropriate time, to enable the Houses to scrutinise secondary legislation effectively. This was not only demonstrated in this case but also arose in relation to the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 where the Minister similarly acknowledged that explanatory material should have been laid alongside the instrument. We would welcome the views of the Cabinet Office about what guidance should be given to ministers at the start of their appointment to ensure that the importance of supporting parliamentary scrutiny by the provision of complete and timely explanatory material is fully understood from the outset.
34.We drew the Minister’s attention to apparent discrepancies in the limited information that was provided: the EM stated that there were “around 1,000 accidents per year involving B+E vehicles”, whereas during the debate on 14 December she had cited figures more than 50% lower. The Minister told us that both figures were correct – the higher figure was for all vehicles towing a trailer and the lower one was the result of the subsequent “drilling down” into the figures relating to cars and vans only. This explanation was helpful but should have been more widely available.
35.This is not the first time we have had to question the accuracy of explanatory material provided by DfT. We therefore asked the Minister what steps she would take to improve the explanatory material DfT presents to Parliament in support of its SIs. She said that in future every EM would be sent to a senior official from an unrelated policy area to be checked before being submitted to the Minister. The Minister was aware that we had recently asked a similar question of the Minister responsible for marine legislation, Robert Courts MP, and said that they would be working together to improve the quality of EMs across the Department.
36.Each department has a Minister responsible for secondary legislation generally. We asked Baroness Vere what role that Minister in the DfT had in influencing the quality of secondary legislation in the Department. The Minister could not immediately respond and offered to provide an answer in writing. Her letter, dated 19 January 2022, is published at Appendix 1. This delayed response appeared to us as an indication that the minister responsible for secondary legislation in DfT has insufficient standing and influence within the Department. We will seek clarification from the Cabinet Office about what functions the appointed ministers are intended to fulfil and how effectively they are operating across Whitehall.
37.This was unusually protracted scrutiny of an instrument, but at no time did we have access to sufficient information to understand the Minister’s decision to legislate in this specific way, and we remain concerned about the road safety implications. Parliament cannot effectively challenge decisions based on private discussions with representative groups or yet-to-be-published risk analysis. We cannot emphasise sufficiently the importance of good quality information to explain and justify legislation and of its being published at the same time as an instrument is laid before Parliament. The EM and IA are not mere “paperwork” but an essential tool in holding government to account.
8 Secondary Legislation Scrutiny Committee, , (Session 2021–22, HL Paper 79) and HL Deb, 9 November 2021, .
9 SLSC, , (Session 2021-22, HL Paper 123).
10 Oral Evidence taken by the SLSC, (Session 2021-22).
11 HL Deb, 14 December 2021, .
18 SLSC, , (Session 2021-22, HL Paper 123).
19 STATS19 is the main system for collecting statistics and data about reported accidents and casualties on public roads in Great Britain. Department for Transport, ‘Road accidents and safety statistics’ (25 November 2021): [accessed 21 January 2022].
20 See for example Drivers’ Hours and Tachographs (Temporary Exceptions) (No. 3) Regulations 2021 (), SLSC, (Session 2021–22, HL Paper 79) and Drivers’ Hours and Tachographs (Temporary Exceptions) (No. 2) Regulations 2021 (),SLSC, (Session 2021–22, HL Paper 63).
25 Department for Transport, Statement of Administrative Sources, (March 2013): [accessed 21 January 2022].
26 SLSC, , (Session 2021-22 HL Paper 79).
29 Regulatory Policy Committee, ‘Motor Vehicles (Amendment) Regulations 2021: RPC Opinion’ (11 January 2022): [accessed 21 January 2022].
31 SLSC, ,(Session 2021-22, HL Paper 50).
32 For example, in relation to the published draft of the . The EM stated that the consultation received no objections when in fact 26% of respondents raised safety issues. SLSC, , (Session 2021-22, HL Paper 88).
34 SLSC, , (Session 2021-22, HL Paper 88).