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Fifteenth Report Contents

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Instruments drawn to the special attention of the House:

Draft Motor Vehicles (Driving Licences) (Amendment) (No. 2) Regulations 2021

Date laid: 16 September 2021

Parliamentary procedure: affirmative

In order to free up capacity at the Driver & Vehicle Standards Agency test centres to enable more HGV drivers to obtain their licences, this draft affirmative instrument would remove the obligation for car drivers towing a trailer to take an additional test. While we appreciate the reasons for this proposal and the need for speed, the Department for Transport has provided insufficient information about the potential for unintended consequences. In view of these unresolved safety concerns about the possibility of towing accidents increasing, we question why the effects of the policy are not to be reviewed until it has been in place for three years. The House may wish to press the Minister for more specific details about the wider safety implications of the policy.

These draft Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.

1.This instrument, laid by the Department for Transport (DfT), would remove the requirement for some car drivers pulling certain types of trailers to take an additional driving test, so as to free up capacity at Driver & Vehicle Standards Agency (DVSA) test centres for new HGV drivers to obtain their licences.

2.The instrument amends retained EU law and would, under normal circumstances, be subject to a two-stage published draft procedure under paragraph 14(2) to (5) of Schedule 8 to the European Union (Withdrawal) Act 2018. However, on this occasion, the Minister has invoked the urgency provisions in a Written Statement to the House.1 It will therefore follow the simple draft affirmative procedure. We accept the Minister’s rationale for this. The Explanatory Memorandum (EM) states that in an average year 30,000 trailer tests (Category BE) are taken, and that these changes could therefore create up to 2,400 additional test appointments for HGV (Category C) licences each month.

Safety Concerns

3.Although we welcome the objective of the instrument - namely, to address the current shortage of HGV drivers - we have concerns about potential unintended consequences. The EM states that there are about 1,000 accidents involving trailers each year. (According to supplementary information from DfT, these are all collisions involving injury). The EM does not comment on how the removal of the towing test may affect this number.

4.When we asked the Department for information about the potential for an increase in towing accidents as a result of this change, DfT replied that a risk assessment on road safety will form part of the Impact Assessment (IA):

“… we are continuing to work with haulage and training industry sectors to ensure we have as accurate picture and evidence base as possible. We are currently getting the IA through clearances which includes clearance from the Regulatory Policy Committee. This is a detailed process and we expect the earliest that the IA is likely to be cleared for formal publication is the end of November.”

5.The Department will not therefore be providing Parliament with any information on potential safety risks until after the legislation has been in effect for two weeks or more. We view this as poor practice.

6.We wrote to the Minister, Baroness Vere of Norbiton, asking to see the risk assessment she had been given prior to signing the Regulations. (The correspondence is published in full at Appendix 1). Her response is based on further analysis, which highlights that the proportion of accidents of cars or vans towing a trailer is low, 474 or approximately 0.45% of all car or van accidents in 2019. DfT cannot, however, explain why the numbers of accidents have reduced since the towing test was first introduced and whether this might change:

“There is not currently any statistical evidence to suggest that competence and skills will worsen if drivers do not take a statutory test to tow a trailer. Road safety has significantly improved over recent decades for several reasons, and it is therefore difficult to identify how much the car trailer test (Category B+E) has made a difference since it was introduced in 1997 or that there is a causal link between road safety and the test.”

Is the BE test necessary?

7.The responses to the consultation exercise (which are currently only presented as a quantitative summary)2 show that more than 32% of 8,753 respondents expressed safety concerns. These responses may, however, also reflect a degree of concern about road safety under the current licensing regime for towing which is complicated:

• anyone who passed their car driving test (Category B) before 1 January 1997 may drive a vehicle and trailer combination up to 8,250kg maximum authorised mass without the need for an additional test. 
• anyone who passed their car towing licence (Category BE) before 19 January 2013 can tow any size trailer, but if they passed after that date, they are limited to a trailer with a maximum authorised mass of up to 3,500kg.

8.The supporting material provided does not explain the reasons why the size of trailer was limited in 2013, nor the effect that change has had on accident statistics. That might have offered some indication of what the effect of removing the requirement to take a towing test might have on accident numbers.

9.The Category BE towing test will not be abolished because it is still needed by anyone wishing to drive with a trailer in the EU. This instrument only removes the obligation to take the test before towing in the UK. We asked why the obligation was not suspended for 12 months instead. DfT replied:

“Changing the legislation on the B+E test requirement now is needed in order to address the HGV driver shortage by rapidly and significantly increasing driver testing capacity that would otherwise not be available. The benefit of increased DVSA capacity to the haulage industry extends beyond the current acute shortage and limiting this to a shorter than 3-year period of review may limit the benefit. Car drivers who wish to tow a trailer or caravan also need assurance of being able to acquire legal driving licence entitlement and would be left in a state of uncertainty if we suspend rather than change legislation.”

10.This statement makes clear that the legislation is intended as a permanent change rather than a short-term fix to deal with the immediate HGV driver shortages. Given the already complex system of towing permissions, we do not see how suspending rather than removing the obligation would have much effect on drivers’ “uncertainty”.

11.It is part of the purpose of an IA to provide information on what options, including non-legislative options, were considered and why they were not adopted. Because the IA has not been made available to the House alongside the instrument, we are unclear about why possible alternatives were rejected.

12.We recommend that the DfT should review the current complex arrangements for what car and van drivers are permitted to tow and, if needed, replace them with a simpler licensing system. That decision should be based on evidence rather than the current experimental approach.

Statutory Review

13.Baroness Vere’s letter in Appendix 1 does provide the current demographic profile of BE licence holders (predominantly drivers around age 40) and continues:

“We do not know at this stage whether there will be a change in the trend in the age distribution of drivers towing trailers if all current and future car licence holders become automatically eligible to tow trailers from the date they pass their test as more younger drivers decide to make use of the entitlement. We will monitor this closely.”

14.From the date this instrument comes into effect, any car driver will be able to tow a trailer but DfT has provided no estimate of the additional numbers that that might attract or the likelihood of incidents that might follow.

15.The instrument includes provision for formal review of the legislation after three years and then every five years after that. Although paragraph 14.1 of the EM states that the Government will routinely monitor any adverse impact on road safety through annual official casualty statistics, the House may find this approach cavalier. The House may therefore wish to ask the Department to provide an annual Written Statement setting out towing accident figures as a reassurance that it will be in a position to undertake remedial action swiftly if a problem emerges.

Conclusion

16.The benefits of this legislation to industry by increasing the supply of HGV drivers are clear but the House has been given no information about whether, and to what degree, this benefit may be offset by a potential increase in towing accidents involving injuries.

17.The Department failed to provide any indication of the instrument’s wider effects when the instrument was laid and, in response to our follow-up questions, DfT was unable to explain what affect the removal of the BE licence will have on road safety. We therefore take the view that the House currently has insufficient information to enable proper assessment of the policy and the House may wish to press the Minister for more specific details about its wider safety implications.

School Teachers’ Pay and Conditions (England) Order 2021 (SI 2021/1101)

Date laid: 1 October 2021

Parliamentary procedure: negative

This Order is made annually and updates the pay and employment conditions of teachers who are employed in local authority-maintained schools in England with effect of 1 September 2021. As in previous years, there are concerns about the timing of the consultation process which again took place over the summer holidays. Four consultees concluded in a joint submission that this had created significant problems for consultation and planning at the school level. The Department for Education says that the timing is beyond its control as HM Treasury and No 10 now “mandate centrally” the timing of consultations on public sector pay.

The Order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.

18.This Order has been laid by the Department for Education (DfE) with an Explanatory Memorandum (EM). The Order updates the pay and employment conditions for teachers who are employed in local authority-maintained schools in England, as set out in section 2 of the “School Teachers’ Pay and Conditions Document 2021 and Guidance on School Teachers’ Pay and Conditions” (“the Document”). The revised Document will come into force on 22 October 2021, with the effect of its provisions backdated to 1 September 2021.

The statutory process

19.This Order is made annually to introduce new pay and allowance ranges in the national pay framework for teachers in maintained schools in England for the current academic year. DfE says that while non-maintained schools, such as academies and free schools, may adopt other arrangements for the pay and employment conditions of their teachers which suit their specific circumstances, most non-maintained schools continue to follow the Document.

20.The changes made to section 2 of the Document follow a statutory process. Under this process, the Secretary of State formally refers matters concerning the pay and/or other conditions of employment of teachers to the School Teachers’ Review Body (STRB) which subsequently reports on those matters. DfE and the national representatives of teachers and teacher employers may then submit evidence and make representations before the report is finalised and published by DfE. The Secretary of State determines how and to what extent the recommendations in the report should be implemented, and then conducts a statutory consultation on the draft Order before it is made.

The new pay arrangements

21.The Chancellor announced at the Spending Review on 25 November 20203 that there would be a pause to headline pay rises for the majority of the public sector in 2021–22, and that in the context of the pandemic, any pay rises would need to be restrained and targeted and prioritise the lowest paid. Following this announcement, the Secretary of State asked the STRB for its views on targeted uplifts for Unqualified Teachers (UQTs) earning the full time equivalent (FTE) of basic earnings of less than £24,000, proposing pay uplifts for these teachers of £250, or the National Living Wage increase, whichever is higher. There are currently some 21,800 FTE UQTs.

22.The STRB endorsed the proposed pay award of £250 for all teachers earning less than £24,000 (FTE), with recommended equivalent values for those in the London area. The STRB also recommended the reintroduction of advisory pay points on the UQT pay range which the Department has agreed to implement.4

23.According to DfE, while the majority of teachers will not receive a headline pay uplift, teachers earning below the maximum of their pay range may still be eligible for performance-related pay progression, and teachers may also apply for promotion. The Department says that it remains committed to increasing the teacher starting salary to £30,000 and that while pay restraint in 2021/22 will slow progress towards this commitment, steps taken in recent years, including a 5.5% uplift to starting pay in September 2020, have made a “substantial difference to the competitiveness of the early career pay offer”. DfE adds that the Government will review the pay policy before the 2022 pay round, taking into account the economic recovery and the impact of the pandemic on the wider labour market.

24.In addition to the changes to pay, the Document has been revised to reflect the following:

• Changes to the terms and conditions for newly qualified teachers (NQT) in their first or second year of statutory induction, as a consequence of changes made by an earlier instrument,5 which extended the statutory induction period from one to two years with effect from 1 September 2021;
• a change to enable teachers working additional hours providing tutoring to deliver catch-up support to pupils and address learning disruption during the pandemic to be paid through the Teaching and Learning Responsibility payment 3 (TLR3) payment mechanism; and
• changes to the days that a teacher must be available for work and the directed hours that a teacher employed full-time must be available to reflect the additional Bank Holiday on Friday 3 June 2022 to mark the Queen’s Platinum Jubilee.

Consultation

25.As required, DfE invited organisations which contributed to the STRB process to comment on the STRB’s 31st report6 and the revised draft Document during an eight-week statutory consultation period from 21 July to 14 September 2021. Seven of the eight consultees to the process responded, either individually or through a joint response. The EM summarises the views and concerns expressed during consultation, including calls to remove performance-related pay from the pay structure and criticism of the Government’s decision not to uplift the pay of the majority of teachers, which is seen by some consultees as undermining teacher recruitment and retention. There was also criticism of the DfE’s remit and evidence to the STRB. Consultees suggested that excluding the majority of teachers from consideration of pay uplifts in the STRB remit had effectively amounted to a pay freeze and negated any subsequent consultation responses and evidence gathering by the consultees.

26.As in previous years, some consultees (the Association of School and College Leaders, the National Association of Headteachers, the National Education Union and Voice) raised concerns about the timing of the publication of the STRB report in late July, highlighting that this had “created significant problems for consultation and planning at the school level”.7 The National Association of Schoolmasters Union of Women Teachers also criticised the timing of the publication of the STRB report and the consultation over the school holiday period. We have expressed concerns about the timing of the consultation on teachers’ pay before.8 Asked why the consultation had taken place again over the summer, DfE told us that:

“[T]he position is exactly the same this year as it has been for the last 3 or 4 years. [HM Treasury] and No10 now centrally mandate when all public sector pay review bodies are published and the consultation launched and they have decided that all review body reports and consultations should be launched on the same day. So, although we would have been ready and happy to publish much earlier than we did, we were subject to the decision from HMT and No10.”

27.We note the link to the wider public sector pay process, but question whether the process could be timed more effectively in future so as to avoid the summer holiday period.

Drivers’ Hours and Tachographs (Temporary Exceptions) (No. 3) Regulations 2021 (SI 2021/1106)

Date laid: 30 September 2021

Parliamentary procedure: negative

This is the fourth instrument this year to make a “temporary” exception to HGV drivers’ hours and under it the relaxed provisions will have been in effect continuously from 12 July to 30 October (16 weeks). We have previously drawn these instruments to the attention of the House on the grounds that, if used over a long period, these extensions may constitute a road safety risk from cumulative tiredness. Our 12th Report, on the previous extension, drew attention to the Department for Transport’s (DfT) failure to provide any evidence to address that concern. The Explanatory Memorandum to the latest instrument states that DfT does not yet have accident figures covering the exception period. The House may wish to ask the Minister what evidence the Department is using in its assessment that these Regulations do not compromise road safety.

These Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.

28.These Regulations were laid by the Department for Transport (DfT) and extended (with one modification) the temporary exceptions to the Drivers’ Hours Regulations,9 so that the relaxed provisions run continuously from 12 July to 30 October (16 weeks).

29.The purpose of the temporary exceptions is to increase the flexibility of driving and work patterns in the context of the current supply chain difficulties. Normally, a driver is limited to nine hours of driving in a day, but this can be increased, twice a week, to 10 hours. Regulation 3 extends the drivers’ daily limit to 10 hours, up to four times a week. (The previous Regulations instead allowed 11 hours twice a week). Drivers remain restricted to a maximum of 56 hours driving in a week and 90 hours in a fortnight.

30.As an alternative, regulation 4 provides for an amended weekly rest pattern that allows an additional day of driving in a fortnight (providing an equivalent period of rest is taken before the end of the third week). This exception increases the maximum permitted driving time in a fortnight to 99 hours from the standard 90 hours.

31.In the Explanatory Memorandum (EM), DfT states that drivers’ use of the temporary exceptions is constrained by the requirements of the sector specific Road Transport (Working Time) Regulations 2005, which limit drivers’ working hours to an average of 48 hours a week over a 17 to 26 week reference period. Those regulations also limit drivers to a maximum of 60 hours in any given week, provided the average is still 48 hours. According to DfT, this “ensures drivers are not working continuously long hours, even if working under temporary exceptions to the Drivers’ Hours Regulation.”

Lack of supporting data

32.Our 12th Report,10 on the previous extension, drew attention to DfT’s failure to provide any evidence to support their assertion that drivers were not working for too many hours. In paragraphs 14 to 16 of our report, we published supplementary data from DfT which showed that, of 1,425 roadside checks of drivers’ hours records, 411 offences were identified (29%). In supplementary material the Department has provided updated figures: between 12 July and 3 October the Driver and Vehicle Standards Agency (DVSA) undertook 4,333 targeted checks which identified 1,168 drivers’ hours offences (27%) of which 187 were sufficiently serious to attract a penalty (16% of offences, or 4.3% of the total number stopped). These figures do not appear to support DfT’s assertion that drivers are complying with the legislation.

33.Separate figures were provided for those firms which have notified the Department in due form of their intention to use the relaxation: of 97 DVSA checks, 53 (55%) offences for drivers’ hours were identified, of which 12 related to the relaxed rules (23% of offences or 12 % of the total stopped). This information appears to indicate that the requirement for operators to notify DfT of their intention to use the relaxations makes little difference to their compliance.

34.We also note with concern paragraph 7.11 of the EM to this instrument which states:

“The Department has not been made aware of any increases in accidents involving HGV’s since the exceptions to the drivers’ hours rules were first introduced in July 2021. However, as we do not have accident figures covering this period yet,11 we will continue to monitor the situation.”

35.We are surprised that DfT states that, when these Regulations were laid, more than 11 weeks after the commencement of the relaxation period, they had no accident figures to indicate whether it has had an effect on road safety.

36.We are even more surprised that they should extend the relaxation period without confirmation that it is safe to do so, especially when available data shows that a significant proportion of the drivers stopped (27%) were breaching the Drivers’ Hours legislation.

Consultation

37.We have repeatedly expressed our concern that the cumulative effect of additional hours driving may affect road safety and, for that reason, we would not wish to see the relaxation of drivers’ hours repeatedly extended. We were concerned to learn that the Department originally consulted on a proposal to extend the relaxation until 23 January 2022. The EM states that 12 of the 18 respondents, mainly unions and road freight transport associations did not support that proposal which was subsequently reduced to the four weeks allowed by this instrument.

38.The full consultation analysis is not available but on request DfT provided us with more information (published at Appendix 2). Reasons for rejecting the proposal included driver fatigue, limited practical usefulness of the hours’ relaxation and worsening of the current situation which is encouraging drivers to leave the sector.

Conclusion

39.It is a well-known road safety message that “tiredness kills” and our concerns are based on the potential cumulative effects of longer hours on even the best HGV drivers. We have repeatedly asked DfT to provide evidence that would allay our concerns, but the EM accompanying this instrument indicates that the Department does not have information either way. We therefore again question how effectively DfT can legislate without a good understanding of what is actually happening on the roads.

40.We are concerned that neither the House nor DfT has sufficient information to judge whether it is safe to extend the relaxation in drivers’ hours. The House may wish to ask the Minister what evidence the Department is using to make an assessment that these Regulations do not compromise road safety.

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