On 6 December 2021, the House of Lords is due to debate a motion tabled by Earl Attlee (Conservative) to annul the Drivers’ Hours and Tachographs (Temporary Exceptions) (No. 4) Regulations 2021 (the instrument). Earl Attlee’s motion states that the instrument should be annulled because it “fail[s] to address the underlying cause of the shortage of HGV drivers”. If the motion is agreed, the instrument would cease to apply.

The instrument further extends the temporary relaxation of retained EU law that sets the driving time limits and rest patterns of heavy goods vehicle (HGV) drivers. The retained EU law is Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 (the drivers’ hours regulation). The Government introduced the temporary relaxation in response to concerns about potential disruption to supply chains caused by a shortage of HGV drivers and the Covid-19 pandemic.

The Government laid the instrument under the made negative procedure on 29 October 2021. It officially came into force on 1 November 2021. Rules for the made negative procedure state that instruments should not normally come into force until at least 21 days after being laid. In the explanatory memorandum to the instrument, the Government noted its regret that the instrument breached these rules. It said it had decided to act promptly to ensure that permitted driving patterns of HGV drivers could be amended if needed.

This instrument is one of several previous instruments introduced by the Government. The previous instruments were similar and temporarily relaxed the drivers’ hours regulation between 12 July 2021 and 31 October 2021. This latest instrument further extends the temporary relaxation from 1 November 2021 until 11.59pm on 9 January 2022.

On 13 October 2021, Earl Attlee tabled a motion to annul one of the earlier instruments introduced by the Government: the Drivers’ Hours and Tachographs (Temporary Exceptions) (No. 3) Regulations 2021 (the previous instrument). This previous instrument relaxed the HGV drivers’ hours regulation between 4 October and 1 November 2021. The motion was not debated so the previous instrument remained in force.

What does the instrument do?

The instrument extends the temporary relaxation of the drivers’ hours regulation for HGV drivers undertaking journeys in Great Britain from 1 November 2021. The instrument will automatically expire on 10 January 2022, unless otherwise extended by legislation.

In the explanatory memorandum to the instrument, the Government said that the temporary relaxation allows either:

  • the daily driving hours limit to increase from nine to 10 hours in a single day, up to four times a week (a driver is normally limited to nine hours of driving in a single day, which can be increased to 10 hours up to twice a week, if needed); or
  • the replacement of the requirement to take a minimum of one ‘regular rest period’ (of at least 45 hours) and one ‘reduced rest period’ (of at least 24 hours) during every two-week period, with an alternative pattern of two consecutive reduced rest periods. Drivers undertaking this alternative rest pattern are required to take an equivalent compensatory rest period during the following week.

The decision about whether to use the temporary relaxation should be agreed between transport operators, drivers and their representatives. The Department for Transport (DfT) guidance on the extension to the temporary relaxation of drivers’ hours states that the temporary relaxation should only be used “where necessary” and if the following conditions are met:

  • there is evidence of detriment to the wider community (for example a failure of a particular supply chain that will have serious impact on essential public services);
  • there is evidence that a relaxation would lead to a significant improvement in the situation; and
  • drivers’ safety is not compromised.

If these conditions are met, operators must notify the DfT on their decision to use the temporary relaxation by completing an initial notification of relaxation form. However, if any of these conditions are not met, normal rules in the drivers’ hours regulation should be followed.

The DfT guidance emphasises that driver safety must not be compromised. Drivers should not be expected to drive whilst tired, and employers remain responsible for the health and safety of their employees and other road users.

Why has the instrument been introduced?

The Government set out why it believes the temporary relaxation is necessary in the explanatory memorandum to the instrument:

These temporary exceptions are necessitated by the exceptional circumstances arising from the cumulative impacts of the Covid-19 pandemic across Great Britain and an acute shortage of HGV drivers, which adversely affect the carriage of goods by road.

It also noted that seasonal increases in demand for goods over the Christmas period were compounding the problem, and supply chains remained at risk from disruption caused by unforeseen circumstances such as adverse weather or consumer behaviour. Therefore, it stated that the instrument would increase flexibility of driving and working patterns to respond to the current circumstances.

Why is there an HGV driver shortage?

The current HGV driver shortage follows a reduction in the number of HGV drivers working and an increase in HGV driver vacancies. In a letter to Boris Johnson, the Prime Minister, in June 2021, the Road Haulage Association (RHA)—the UK’s trade association for road haulage—estimated the shortage to be over 100,000 drivers. It stated the shortage was at “crisis point” and causing critical supply to fail. The exact figure of the HGV driver shortage has been questioned by some independent fact-checking organisations, but employment data from the Office for National Statistics shows that UK HGV driver numbers have been declining since 2017.

Several factors are believed to have caused the shortage of HGV drivers, including the Covid-19 pandemic, Brexit, and an ageing workforce. In response to the HGV driver shortage, the Government said that several factors had contributed to the shortage. This included: HGV driving tests not taking place due to the Covid-19 pandemic; the economic bounce-back from Covid-19; an ageing workforce; and a reliance on overseas labour with a lack of long-term investment in the UK domestic workforce.

The RHA’s report from July 2021 on the driver shortage said that Brexit, changes in off-payroll working rules (IR35) by HM Revenue and Customs, retiring drivers, a shortage of apprentices, and industry standards such as facilities, pay, and treatment from the public and at depots, had also contributed to the shortage.

To address the HGV driver shortage, the Government said it would take several actions aimed at reducing the shortage. These included actions to:

  • increase efficiency in existing supply chains;
  • provide support and training for new HGV drivers;
  • expand HGV driver testing capacity and improve licencing processes;
  • attract drivers back to the sector and improve conditions; and
  • ensure the stability of the fuel supply chain.

The instrument forms one of the five government actions aimed at increasing efficiency in existing supply chains.

What has the reaction been?

Since July 2021, unions and HGV drivers have raised concerns about the temporary relaxation of the drivers’ hours regulation.

In a press release on 8 July 2021, following the Government’s announcement that the temporary relaxation would be introduced from 12 July 2021, the RHA stated that this could be “counter-productive” by making the industry less desirable to new employees.

On 5 October 2021, an article from the union Unite reacted to the previous instrument that relaxed the HGV drivers’ hours regulation between 4 October and 1 November 2021. It raised concerns about driver safety and possible further extensions to the temporary relaxation.

However, some food distributors have supported the temporary relaxation. For instance, speaking in Wholesale News in July 2021, James Bielby, the chief executive of the Federation of Wholesale Distributors, welcomed the relaxation:

This is just what food distributors needed—an immediate and obvious solution to what could have been a catastrophic supply chain failure. […] The flexibility in drivers’ hours means those out-of-the-way shops, pubs and restaurants will get the stock they need for the big re-opening on Freedom Day [19 July 2021, the day that most legal Covid-19 restrictions were relaxed in England], and will allow wholesalers to do as much as 15% more deliveries each day. Provided it remains in place into the autumn, it will avert possible school closures in September and shortages in the shops in the run up to Christmas.

The Government has continued to defend the temporary relaxation. In October 2021, a spokesperson for the DfT is reported to have said that the temporary relaxation should not compromise driver safety.

The Government ran a statutory consultation for the previous instrument from 15 to 22 September 2021. For the current instrument, the Government contacted stakeholders who had responded to the September consultation and asked for any updates to the evidence they had provided for the previous instrument. In the explanatory memorandum to the instrument, the Government said that although significant respondents were against continuing the temporary relaxation, supply chain pressures remained “acute” with demand “high in the build-up to Christmas”. Therefore, the temporary relaxation to the drivers’ hours regulation would be “retained to assist supply chain resilience”.

What parliamentary scrutiny has there been?

The House of Lords Secondary Legislation Scrutiny Committee (SLSC) drew the instrument to the ‘special attention’ of the House in a report published on 11 November 2021. This was on the grounds that the instrument was “politically or legally important and give[s] rise to issues of public policy likely to be of interest to the House”.

The SLSC has drawn the House’s attention to previous instruments that have permitted temporary relaxation to the drivers’ hours regulation since 12 July 2021. This was on the grounds that “cumulative tiredness in HGV drivers may constitute a road safety risk”. The SLSC also highlighted figures indicating that a “significant proportion” (27%) of the drivers stopped in roadside checks are breaching the drivers’ hours legislation, which it said bolstered its concern. The SLSC said it had repeatedly asked the DfT to provide evidence to allay these safety concerns. However, it stated that responses from the Government “have indicated that the [DfT] does not have information either way”. It reported the DfT to have said that it “has not been made aware of any increase in accidents involving HGVs” since the temporary relaxation was introduced in July 2021. The SLSC said this response was not sufficient to allay its concerns.

The Joint Committee on Statutory Instruments considered the instrument on 17 November 2021 but chose not to report it to the House.

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