Two of the three 2020 orders that relate to Operation Brock are subject to different types of the affirmative procedure:
- The Draft Heavy Commercial Vehicles in Kent (No. 1) (Amendment) Order 2020 is subject to the draft affirmative procedure. This means it must be approved by both Houses before it can be signed into law.
- The Heavy Commercial Vehicles in Kent (No. 2) (Amendment) Order 2020 (SI 2020/1155) is subject to the made affirmative procedure. This means it has been signed into law but needs to be approved by both Houses within a certain time period to continue in force.
A third related statutory instrument—the Heavy Commercial Vehicles in Kent (No. 3) (Amendment) Order 2020) (SI 2020/1146)—is subject to the made negative procedure. This means it has been signed into law and will remain in force unless either the House of Commons or House of Lords objects within a certain time period.
The three 2020 orders amend the following three orders from 2019:
- Heavy Commercial Vehicles in Kent (No.1) Order 2019 (SI 2019/1388)
- Heavy Commercial Vehicles in Kent (No.2) Order 2019 (SI 2019/1394)
- Heavy Commercial Vehicles in Kent (No.3) Order 2019 (SI 2019/1210)
The House of Lords Secondary Legislation Scrutiny Committee (SLSC) considered the 2020 orders on 3 November 2020. The SLSC noted them as instruments of interest but didn’t draw them to the special attention of the House. The Joint Committee on Statutory Instruments considered the two affirmative 2020 orders on 11 November 2020 but did not report the instruments to the Houses.
The border after the transition period
From 1 January 2021, the UK’s trading relationship with the EU will change. The Government has stated its goal is to ensure that goods continue to flow as smoothly as possible between Great Britain (GB) and the EU. Whilst the Government has argued that there are opportunities for businesses as a result of the changes, it has also said “for an initial period” there would be a risk of additional friction “if goods are not accompanied by the correct customs and associated documentation”.
Goods exported from GB to the EU will need to carry customs documentation with the goods. The Government has said that this may also need to be accompanied by import/export documentation. Without this there could be a risk of drivers being “stopped by the EU authorities, fined, having the cargo seized or destroyed, or returned to Great Britain”. The Government has also said that in some cases drivers without correct documentation could be prevented from boarding services departing GB.
Delays and disruption at EU ports could have consequential delays in GB. The Government has said that the short straits crossing from Kent to Hauts de France could be particularly at risk because of the volume of HCVs using the route. Its “reasonable worst-case scenario” suggested this could lead to queues of up to 7,000 HCVs in February 2021 in Kent. The Government has said the risk is not inevitable, but that it was working with others such as the Kent Resilience Forum to deploy a traffic management system if needed.
In 2019, the Government made three statutory instruments which provided for the implementation of a traffic management system called ‘Operation Brock’. This is:
[…] a coordinated multi-agency response to situations of cross-Channel travel disruption, when capacity for heavy goods vehicles (HGVs) to leave the UK through the Port of Dover or the Channel Tunnel is significantly restricted. The KRF [Kent Resilience Forum], with support from the Department for Transport, developed this new approach, which has been deployable from March 2019.
Operation Brock consists of a series of measures designed to mitigate delays to HCVs crossing the channel from GB to the EU. They include queuing systems in Kent and a contraflow system on the M20 to enable “all other traffic to travel in both directions on the London-bound carriageway when cross-Channel trucks are stored on the coastbound carriageway”. The Government has explained that after the transition period, customs declarations will be required for all goods imports and exports shipped between GB and the EU “whatever the outcome of the trade talks with the EU”. The Government intends Operation Brock to be a replacement for Operation Stack (which was a traffic management system used in 2015).
What do the 2020 orders do?
The 2019 orders were subject to built-in expiry dates, known as sunset clauses, because “Operation Brock (in its 2019 incarnation) was only intended to function for a year”. The new 2020 orders extend the built-in expiry dates from 31 December 2020 to 31 October 2021, which would allow heavy commercial vehicle (HCV) traffic to continue to be regulated if required. The Government has said it believes that if there is significant congestion at the border after the transition period “it’s likely the situation will improve substantially over the first half of 2021”.
The 2020 orders also make some additional amendments to the 2019 orders. For example, the 2020 No 2 order:
[…] modifies the roads included as approved routes that a cross-Channel HCV may take to the ports, requires a cross-Channel HCV to have a valid KAP [Kent access permit] when using the local road network in Kent, and allows an East Kent and Faversham Town Council based cross-Channel HCV driver holding a local haulier permit to use local roads when they would be otherwise restricted to using the motorway network.
Cross-Channel HCV drivers would be required to use the ‘Check an HGV is Ready to Cross the Border service’. The service would issue drivers with a KAP if they were deemed “border ready”. A KAP would be required for cross-Channel drivers to use the M20 or A2/M2 in Kent to reach the Channel Tunnel terminal at Cheriton or the Port of Dover. Those travelling without a valid KAP could be stopped and subject to a fine of £300. Use of the Check an HGV service would not be mandatory for other ports, but would be encouraged.
The 2020 No 3 order, which is subject to the made negative procedure, would also:
[…] allow HCVs carrying only specific goods (fresh and live seafood products and day-old chicks (“DOCs”)) to obtain a priority goods permit that allows HCVs to bypass the Operation Brock queues.
Consultation on the 2020 orders
In August 2020, the Government consulted on plans to update the 2019 orders.
The Government responded to the consultation in October 2020. In a foreword, Grant Shapps, Secretary of State for Transport, said there was “overall support” for the proposals. For example, the response document stated that 55% of respondents agreed with the proposal to extend the operating time of the proposals so that Operation Brock could be implemented in 2021 (of the remainder, 39% disagreed and 9% replied with “don’t know”). In addition, 62% agreed with the Government’s proposal to make the use of the Check an HGV service mandatory (including the £300 fine) for cross-channel HGV drivers travelling through Kent and the short straits.
The freight sector is reported to have offered qualified support for the consultation. Heidi Skinner, policy manager for the South East at Logistics UK (formerly the Freight Transport Association), said the response provided “some reassurance for logistics businesses that contingency plans will be in place to enable them to deal with any disruption to the supply chain from 1 January 2021 onwards”. However, she said that it missed “much of the detail” that operators needed to plan effectively. Writing in October 2020, Ms Skinner also said that a ‘Hauliers Handbook’ developed by the Government to assist people in understanding the new rules still needed work. She said that Logistics UK had been urging its members and exporters and importers to prepare for the end of the transition period. On 18 November 2020, the Government published guidance for hauliers and commercial drivers moving goods between GB and the EU after the transition period. The importance of guidance for drivers has been highlighted in press reporting. For example the Financial Times (£) reported on 17 November 2020 on the Department for Transport’s work to raise awareness of the changes.
Traffic management in Kent has been the subject of consideration by parliamentary committees. Recently, the House of Commons Future Relationship with the European Union Committee held an oral evidence session on 11 November 2020 looking at government preparations for post-transition border operations. Giving evidence were Stephen Bartlett, chairman of the Association of Freight Software Suppliers; Elizabeth de Jong, Logistics UK’s director of policy; and Councillor Kevin Bentley of Essex County Council and chair of the Local Government Association’s Brexit Task Force. The session discussed a range of issues related to the latest HCV orders, including the implementation of the Kent access permit.
In July 2020, the Cabinet Office published the first version of its ‘Border Operating Model’. This set out the core elements that importers and exporters will need to follow after the end of the transition period. The Cabinet Office published an updated version in October 2020 which included a number of new additions and changes. It is a live document and will be amended on an ongoing basis:
- Cabinet Office, The Border with the European Union: Importing and Exporting Goods, October 2020
Cover image by Ethan Wilkinson on Unsplash.