On 18 March 2021, the House of Lords will debate the Drivers’ Hours and Tachographs (Temporary Exceptions) Regulations 2021 (SI 2021/58) under three motions. Two of these are regret motions and one is a take note motion. If approved, the regret motions would have no legal effect; instead, regret motions allow the House to put its concerns about an instrument on record. The take note motion allows the House to debate the regulations without taking a decision on them.

The instrument was laid on 21 January 2021 and came into force on 22 January 2021. It is a negative instrument laid before both Houses of Parliament. As a result, it became law automatically, but could have been revoked if either House agreed an annulment motion within 40 sitting days of it being laid. The time limit for annulling the instrument expired on 11 March 2021.

The regulations allow the temporary relaxation of the enforcement of retained EU law which sets rules for the driving hours of heavy goods vehicle (HGV) drivers undertaking journeys in Great Britain and Northern Ireland or internationally. For example, it would allow an increase in the maximum amount that could be driven in a fortnight from 90 hours to 96 hours. It would also allow less frequent rest periods. The guidance states that this should only be done where necessary and not at the expense of driver or road safety.

The relaxations have been introduced due to concerns about disruptions to supply chains following the UK leaving the EU and because of the coronavirus pandemic.

What does the instrument do?

The instrument’s explanatory memorandum explains that it:

Provides for temporary exceptions to certain provisions of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 (“the Drivers’ Hours Regulation”) which establishes standard rules for permitted driving times and work patterns for drivers of heavy goods vehicles (HGVs).

The Drivers’ Hours Regulation forms part of retained EU law under section 3 of the EU (Withdrawal) Act 2018.

In particular, the temporary exceptions would allow changes to HGV drivers’ hours and rest periods where necessary, including:

  • They would allow international drivers to either drive for up to 11 hours (as opposed to 9 or 10 hours) during a single day or to allow a weekly rest period to be taken after seven days rather than after six.
  • It would increase the maximum fortnightly driving limit from 90 hours to 96 hours for domestic and international drivers.

The exceptions apply from 22 January 2021 to 31 March 2021. Similar exceptions were used between 23 December 2020 and 21 January 2021 (the initial 30-day temporary exception period was allowed under the Drivers’ Hours Regulation without the need for legislation).

The Government has explained that the temporary exceptions are necessary due to supply chain disruption caused by the UK leaving the EU and by the coronavirus pandemic. It explained:

Temporary exceptions to the EU drivers’ hours rules for HGV drivers were introduced for the period 23 December 2020 to 21 January 2021 to ensure critical supply chains were maintained. This was in the light of potential severe disruptions stemming from a culmination of circumstances including changed border arrangements and the continued coronavirus effects on retail demand and driver availability.

The situation as of mid-January 2021 and liable to pertain for at least a further few weeks is that risks to critical supply chains due to coronavirus remain, and disruption to these supply chains could occur at very short notice. Workforces including drivers have been and are liable to be reduced (including at short notice) due to high absence levels, risking the maintenance of important supply chains. The situation has worsened substantially during the last month. Some usual mitigations (such as training more drivers) are not available. Drivers’ hours relaxations can assist industry with mitigating risks to supply chains potentially continuing into February and March.

However, the Government stressed in the explanatory memorandum that use of the relaxations must not compromise driver welfare and road safety. It stated that employers remain responsible for the health and safety of their employees and other road users and that the relaxations should only be used where necessary. Further guidance on using the relaxations has also been published by the Government. It reiterated that drivers should not be expected to drive when tired, and explained:

The practical implementation of the temporary relaxation should be through agreement between employers and employees and driver representatives. When driving under the EU drivers’ hours rules, drivers must note on the back of their tachograph charts or printouts the reasons why they’re exceeding the normally permitted limits. This is usual practice in emergencies and is essential for enforcement purposes.

What concerns have been raised?

Two regret motions have been tabled against the regulations. They are due to be debated on 18 March 2021, alongside a take note motion (tabled by Lord Rosser (Labour)).

The first regret motion, tabled by Baroness Randerson (Liberal Democrat), regretted that the regulations would have a “detrimental impact on heavy goods vehicle drivers and the hours they will be required to work, and does not provide clarity for such drivers on how the temporary exemptions to requirements for rest breaks will operate”. The second, tabled by Lord Berkeley (Labour), regretted that it allowed the “continuation of relaxed restrictions on the normal rules on heavy goods vehicles drivers’ hours without evidence having been provided of the need for such a continuation or of its effect on road safety”.

Concerns were also raised by the House of Lords Secondary Legislation Scrutiny Committee in its report published on 4 February 2021. The committee drew the instrument to the special attention of the House of Lords on the grounds it was politically or legally important and gave rise to issues of public policy likely to be of interest to the House.

The committee expressed concern about various aspects of the exceptions, including:

  • The lack of parliamentary scrutiny before the exceptions came into force (including during the initial period of exceptions, which operated from 23 December 2020).
  • How the guidance to only use the exceptions “where necessary” might be applied. The committee said that the definition of this was “vague”. It was concerned there would be pressure on drivers (either from employers or on a personal financial basis) to work the extra hours. It also noted a submission from the Unite the Union trade union stating that fatigue is cumulative, and that a lack of proper rest over three months could result in increasingly serious risks in terms of road safety.
  • Whether the system might be abused for commercial advantage. The Department for Transport stated that the Driver and Vehicle Standards Agency (DVSA) checks operator records and monitors the use of relaxations. The committee suggested the House may wish to ask for an analysis of the outcome of the DVSA checks to be presented to Parliament to scrutinise this.

Noting that the explanatory memorandum stated that the relaxations were brought in at the request of industry, the committee asked the Department for Transport who was consulted and whether that included drivers’ representatives. The department 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.

Regarding Unite the Union, the committee found it was particularly concerned about HGV drivers not getting “proper rest” due to the relaxations.

The committee concluded:

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.

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.

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.

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