COMMITTEE FOR THE ENVIRONMENT
OFFICIAL REPORT
(Hansard)
Goods Vehicles (Licensing of Operators) Bill
16 October 2008
Members present for all or part of the proceedings:
Mr Patsy McGlone (Chairperson)
Mr Cathal Boylan (Deputy Chairperson)
Mr Roy Beggs
Mr Trevor Clarke
Mr David Ford
Mr Tommy Gallagher
Mr David McClarty
Mr Ian McCrea
Mr Alastair Ross
Mr Peter Weir
Witnesses:
Mr Donald Armstrong )
Mr John Brogan ) Department of the Environment
Mrs Gillian McIntyre )
The Chairperson (Mr McGlone):
The Committee has concluded its evidence sessions on the Goods Vehicles (Licensing of Operators) Bill and will soon begin its clause-by-clause scrutiny.
Witnesses appearing before the Committee today are Donald Armstrong, head of the driver, vehicle and operator policy branch, and John Brogan and Gillian McIntyre, both of whom are members of the Department of the Environment’s (DOE) Goods Vehicles (Licensing of Operators) Bill team. They are very welcome again.
Mr Donald Armstrong (Department of the Environment):
Thank you for your welcome. I am sure that you have noticed that we have aged quite a bit over the past few months.
The Chairperson:
Have you? Not a bit of it.
Mr D Armstrong:
It feels that way.
I will give a brief overview on which we will take questions. Our departmental Assembly liaison officer, Una Downey, has provided the Committee with the Department’s response to its query about the particular regulation-raising clauses in the Bill. There are quite a few such clauses, which I will summarise.
First, the Bill allows for commencement Orders to commence, repeal, amend or modify the Bill — once enacted — through affirmative resolution as contained in clause 56. Secondly, one regulation will be made under affirmative resolution. For example, clause 27(3) deals with the period between reviews. That has been set in the Bill at five years, but there is provision to change that by affirmative resolution.
All the other regulations in the clauses are subject to negative resolution and are subject to consultation as set out in clause 57(11). They would also be subject to SL1 proposals being brought to the Committee.
In general, the regulation-making powers correspond with those that have been created by the GB Goods Vehicles (Licensing of Operators) Act 1995, of which members have a copy. Those powers are also in the Transport Act ( Northern Ireland) 1967, and they generally replicate what is already in place in other legislation.
However, there are some cases in which, following recommendations from GB and the Office of the Legislative Counsel (OLC) when the Bill was being drafted, we have moved powers from primary into subordinate legislation. I will give the Committee one example of that.
The particulars that a person must supply when they apply for a licence are listed in section 8 of the Goods Vehicles (Licensing of Operators) Act 1995. Details that pertain to the information that must be supplied under section 8 are contained in schedule 2 of that Act. We have replicated section 8 of the GB Act in clause 7 of our Bill. However, we have moved the detail from the schedule into regulations. That is a slight change. The reason for that is that it makes it easier to update and amend legislation as appropriate. That approach has been adopted with OLC agreement, and it relates generally to the administration of the licensing process and function.
When the former Minister gave approval for the Bill, three options were considered. The first was to do nothing and to leave Northern Ireland’s system as it is. The second was to replicate exactly what happens in GB. The third — the one that the Minister chose and with which we have proceeded — is to replicate what happens in GB but to allow for local variations because of differences that occur in Northern Ireland due to its rural environment, and the number of small businesses and so on.
That approach is facilitated by the fact that the Bill contains regulation-making powers. During the two years after the Bill has been enacted, the Department will be able to take on board representations, such as those that we have already heard — on exemptions, operating centres, and so on — when it makes regulations. Therefore, the Department’s response to the industry is that, through those regulations, it will have greater freedom to tailor the final outcome into something that pleases and helps everybody, rather than having to stick to something rigid.
Much of the work on goods-vehicle licensing — and on public-transport licensing, for that matter — is set out in EU directives. In order to transpose those directives into Northern Ireland law, legislation must be changed. There are severe difficulties in processing and timing in achieving transposition dates. EU directives are much easier to transpose if regulations exist already. I accept that there are many regulation-making clauses in the Bill that will provide the flexibility that is needed to respond to the industry and to the directives, and they will, hopefully, create a Bill that is easier to work with and is as up to date as possible.
The Chairperson:
Do members have any queries on that aspect of the process? Do you want to ask a question, Trevor?
Mr T Clarke:
I will wait until the next Stage to say no to the Bill.
The Chairperson:
I have several questions and points on which I would like clarification. Clause 20 sets out the conditions for the issue of licences. Is there any particular reason why those conditions are so broad? Clause 20(1)(d) uses the words:
“for any other prescribed purpose.”
Mrs Gillian McIntyre (Department of the Environment):
There are specific occasions when conditions can be attached, for example, to improve road safety or to ensure that every operation when a vehicle leaves an operating centre and joins a public road is safe, and when there are environmental issues or declarations of convictions. The Department wants to include that generality in order to enable it to respond to the wide range of industries that exist and the situations that can occur. The aim of operator licensing is to try to bring as many people as possible into the regime, and the Department intends to achieve that by attaching conditions for certain circumstances, for example, for general road-safety purposes. It also enables conditions to be attached for small operators that differ from those that are attached for larger operators.
The Chairperson:
Am I right in saying that any additions or amendments to the legislation would be subject to negative resolution?
Mr John Brogan (Department of the Environment):
Those are subject to negative resolution at the moment; as Donald said, most of the regulations will be subject to negative resolution.
The Chairperson:
Is there any other way of doing it?
Mr D Armstrong:
Affirmative resolution could be used. However, that process is much slower and would tie up the Assembly for what is a relatively administrative piece of work. Nevertheless, I would be happy if the Committee wished to make some of the regulations subject to affirmative resolution.
Mr Beggs:
I assume that there would be a relatively short delay only in changing from negative resolution to affirmative resolution. Would that, therefore, not be a more appropriate method of dealing with the situation, in case some unforeseen difficulties arise with negative resolution, given that such wide powers would exist under the primary legislation?
Mr Brogan:
Across Departments, the convention is that most regulations are subject to negative resolution. However, there are occasions when regulations must be subject to affirmative resolution; for example, regulations under clause 27(3) may be made by affirmative resolution. The Office of the Legislative Counsel advised that any regulations that are made under clause 27(3) will be subject to affirmative resolution because they will amend existing primary legislation by substituting five years with three years, six years, or whatever.
It has been the convention to leave other regulations to negative resolution. However, the Department is easy about it, and if the Committee is anxious about clause 20(1)(d), by all means the subordinate legislation that it, or any other clause can make, can be passed by affirmative resolution.
The Chairperson:
I have a query about clause 57(8), where a contravention of a provision is declared to be an offence. Will you clarify why the Department needs — or feels that it needs — those additional offences? How would the Department exercise that power?
Mr D Armstrong:
Clause 57(8) refers to the level of fine.
The Chairperson:
It refers to the contravention of the provision of regulations.
Mr Brogan:
That will apply only to those regulations that list an offence. It is in the Bill that the punishment or penalty for that offence would, in this case, be on summary conviction to a fine not exceeding level 3. It is a case of setting the actual offence and the penalty in primary legislation. It makes it consistent throughout the Bill that all penalties for offences are contained on the face of the Bill. However, the description of that offence may be contained in the regulation.
The Chairperson:
Would it not be appropriate to make that subject to affirmative resolution?
Mr Brogan:
Generally, the OLC looks towards negative resolution to ensure that the Assembly is not clogged up with —
The Chairperson:
I am sorry, what is the OLC?
Mr Brogan:
The OLC is the Office of the Legislative Counsel — the agency that drafted the Bill. I wish that I could draft the Bill, but no, such work is left to the Office of the Legislative Counsel. That body comprises barristers, so we rely heavily on its legal advice. We do not ask for certain conditions; we rely on the advice of the OLC, and such reliance ensures that there is consistency across Departments.
Mr D Armstrong:
Clause 57(8) is not, in itself, a regulation-making power: it is a statement of an offence. It would not be subject to resolution.
The Chairperson:
Would it not?
Mr D Armstrong:
No; clause 57(8) is a statement that there is an offence under the regulations resulting in a fine not exceeding level 3. It is not a regulation-making power in itself.
Mr Beggs:
What is level 3?
Mr Brogan:
Level 3 is a fine up to £1,000.
Mr Ford:
The point is that clause 57(8) creates criminal offences on the back of regulations that may themselves only be subject to negative resolution, rather than offences being created on the face of the Bill. That is where the issue of an affirmative resolution is more significant.
Mr D Armstrong:
I understand that. Are you suggesting that all the regulations be subject to affirmative resolution? If so, that would create a business issue.
Mr Ford:
No. Clause 20(1)(d) allows the Department to attach conditions to a licence:
“for any other prescribed purpose”.
However, when that is read in conjunction with clause 57(8), it seems to be a fairly open-ended deal for the Department. If criminal offences are then created on the back of those regulations, the legislature should do something about it.
Mr D Armstrong:
Are you suggesting that clause 57(8) reinforces the case for the regulations under clause 20(1)(d) to be subject to affirmative resolution? There are other regulating powers in the Bill that are not as open.
Mr Ford:
I am not suggesting that anything in the regulations that is clearly spelled out in the Bill and the schedules should be subject to affirmative resolution. However, where things are open ended, we have to guard our end of the process, regardless of what OLC tells the Department.
The Chairperson:
The Committee will communicate its views directly with the Department on broad points and await its response. We can then deliberate on them.
Mr D Armstrong:
I accept that there are some broad issues to be considered.
The Chairperson:
OK, the Committee can communicate its views with the Department instead of going through them today.
Mr Boylan:
I have some questions about the operating centres, which is an issue on which Donald loves to answer questions. From a road-safety perspective, one would not want an operator to reverse his or her vehicle out of a driveway. What does the legislation say about that? I will not ask about the planning issue; that is a separate matter.
Mr D Armstrong:
Are you asking for the definition of an operating centre?
Mr Boylan:
Yes, and about how to overcome the issue of driving into and out of an operating centre that is someone’s home.
Mr D Armstrong:
The legislation requires that an operating centre is listed on an operator’s licence. By definition, the operating centre is the place where a vehicle is normally kept when it is not in use. To be fair, the term “operating centre” is a slight misnomer, because it implies that it is a centre from which people are operating. Instead, it refers to the place where vehicles are stored or kept when they are not in use. That could refer to a quarry, for example, which is an operating centre in the literal sense of the term, but it could also refer to — as Mr Boylan suggested — the side of a house where someone parks their vehicle at night.
There is no proposal in the legislation to specify the standard of an operating centre — that will be at the discretion of the person who makes the decisions. In GB for example, one of the Traffic Commissioners, Mrs Beverly Bell, who gave evidence to the Committee last week, spoke of a guideline where a vehicle must enter and exit an operating centre in forward gear — that is not in either primary or subordinate legislation, but it is a guideline that would be applied in a discretionary manner. For example, it may be easy to drive a 4-ton transit van in and out of an operating centre in forward gear or to reverse it out, but a 40-ton or a 44-ton vehicle is a completely different proposition. Therefore, discretion is exercised, but there will be no specification in legislation stating, for example, that someone must enter and exit an operating centre in forward gear.
Mr Boylan:
I am trying to get a definition of what type of vehicle is over the 3·5-ton limit. Perhaps the Department could provide some information on what types of vehicles are over the limit, for example, a Luton van. I ask that because the issue will affect 75% of the industry, who are all own-account operators, which is a substantial number.
Mr D Armstrong:
Would it be helpful if we provided the Committee with photographs of vehicles that are in ruled in and out of scope because of their weight?
The Chairperson:
Yes, that would be useful. How can we get around the misnomer of the term “operating centre”? The term “operate” is a derivative of the verb “to work”. The problems with the Planning Service and other difficulties are created by that misnomer.
Mr D Armstrong:
The operating centres of the majority of businesses will be the place from which they operate and carry out their loading and unloading. Haulage companies and big companies, such as the Henderson Group, will operate from such a centre. “Operating centre” becomes a misnomer when an individual drives a vehicle home and parks it at the side of his or her house at night. In such cases, the house is not an operating centre, because there is no storage at home, and that may have planning implications. The home is merely a place where they park their vehicle, and that is when the misnomer begins to have an effect.
That is why we have provided a definition, so far as the Bill is concerned. If the Committee wants to think of another way of describing the place where a vehicle is kept when it is not in use, we will consider that. Thus far, we have been comfortable with the term “operating centre”, which is also used for the hire-for-reward sector.
The Chairperson:
Perhaps you could come up with a few ideas from the thesaurus.
Mr Boylan:
I do not know whether a clearer definition or an alternative to “operating centre” is required.
Mr D Armstrong:
Do you want a clearer definition or a different title?
Mr Boylan:
Perhaps a different terminology is required.
Mr T Clarke:
I did not intend to comment on this today, because the Committee knows my view on the issue, and it has not changed, and nor will it. One of your earlier submissions to the Committee stated that you would review what you deemed as a suitable operating centre, and you referred to such a review. It was suggested that if someone made a complaint about an environmental issue, for instance, a review would be instigated sooner. I am concerned about that and about what it will mean for someone who parks their 3·5-ton vehicle at the side of their home.
Mr D Armstrong:
That is a difficulty, and it was highlighted by the presentation that was made last week by one of the Traffic Commissioners. It is safer to park a 3·6-ton vehicle at the side of a house than it is to park a 40-ton vehicle. Those are two different situations. That is a huge range of vehicles for which to tie down into legislation. That is why it is left to the discretion of the Traffic Commissioners in GB and why we feel that discretionary powers are necessary.
Mr T Clarke:
That leads to another good point. Are we looking at another job-creation service in Northern Ireland? Will there be another commissioner in Northern Ireland to legislate for that in the future?
Mr D Armstrong:
We are not talking about legislation for that role. As the Committee has heard, there are independent traffic commissioners in GB. While preparing the proposals with the OLC, we sought to have the legislation provide the facility to provide for a traffic commissioner in Northern Ireland. That was refused to us, and, at that time, the Minister said that the issue of a traffic commissioner for Northern Ireland should be left to a different forum. We have freight, buses and taxis. The issue of an independent regulator to look over all those areas should be considered in the round, and not merely in relation to goods vehicles.
That leaves us with two options. First, we can let the existing Driver and Vehicle Agency (DVA), which currently regulates the hire-for-reward sector, take on board the function and leave it within the agency. Secondly, we can separate the function and have a regulator appointed in the Department, but separate from the agency, to have the same the powers and carry out the same functions of the Traffic Commissioners in GB. The Bill allows us to do that.
There are pros and cons for each option. For instance, DVA is already up and running with the system for hire or reward bolted on. The disadvantage of that is that the administration — the prosecutor, judge and jury — are all in the same organisation, and that could be viewed as being unsatisfactory and not sufficiently independent. Alternatively, the traffic commissioner role could be carried out separately, and, should the Government decide to introduce an independent traffic commissioner in the future, it would be easier to transfer that function.
We have to work through that. We have taken views from industry and considered what the best process would be, but we do not have a final solution. An independent traffic commissioner is not envisaged in the legislation, and we have not been allowed to do that.
The Chairperson:
Do you want to leave that for another day, Trevor?
Mr T Clarke:
Yes.
Mr Ford:
I was interested by Donald’s phrase:
“we have not been allowed to do that”
in relation to an independent traffic commissioner. I presume that he means that the previous Environment Minister instructed the Department not to do that.
Mr D Armstrong:
The previous Minister instructed us to proceed with the legislation without including a traffic commissioner. However, when discussing the drafting of the legislation with OLC, we asked whether they would allow the legislation to provide for a traffic commissioner should any future Minister decide that one was required. The OLC was unhappy to include that provision in the legislation, and it stated that it was cleaner to keep it as it was.
The Minister decided that the traffic commissioner should be considered in the round over freight, taxis and buses. The OLC was happy to work with that decision.
Mr Ford:
The Committee has made no formal decision on the evidence that Mrs Bell gave last week, but some of us were impressed by what she said. It could be argued that instituting a traffic commissioner for freight — who could subsequently assume other responsibilities — would provide a good indication of what would be the appropriate course of action to take.
Mr D Armstrong:
That is a valid argument. Including the own-account sector in Northern Ireland’s freight industry makes that industry significantly bigger than was initially envisaged. Indeed, the freight industry could become even bigger, depending on the number of exemptions that are granted. It could also be argued strongly that the freight industry in Northern Ireland is of a sufficient size to warrant a traffic commissioner. Scotland has a traffic commissioner, and the freight industry in Northern Ireland is bigger than that in Scotland. Your argument is valid, but that provision is not contained in this legislation.
Mr Ford:
I presume that that provision would not be beyond the Long Title of the Bill, because it concerns the licensing of operators. I assume that if the Committee were minded to propose amendments, and the Assembly accepted them, they would be competent.
Mr Brogan:
We enquired about that possibility, but we were advised by the Office of the Legislative Counsel that the constitution of traffic commissioner would warrant completely separate legislation.
Mr Ford:
With respect, I am not asking for your advice about what is convenient for the OLC and the Department. We need to establish the ambit of the Bill as it currently stands.
Mr D Armstrong:
All the powers of the GB Traffic Commissioners are replicated exactly in the Bill. The discussion now is about where those powers should be exercised: in the agency; separate from the agency but within the Department; or outside the Department. The Bill provides the opportunity to adopt either of the first two approaches, but not the third.
Mr Ford:
It is the Bill as it currently stands that does not make provision for the third approach.
Mr D Armstrong:
That is correct.
Mr Weir:
You have received advice about the approach that should be adopted, but you have not been advised that it would be legally impossible to make provision for the implementation of a traffic commissioner for freight, for example. Is that a fair comment?
Mr D Armstrong:
Yes.
Mr Weir:
As Mr Ford and Mr Clarke said, the Committee may suggest amendments to the Bill to allow for a traffic commissioner. You have not been advised that that could not be done. You have merely been advised that that would be legally incompetent and that separate legislation would be necessary if there is to be a traffic regulator. You made that point in response to David Ford, but I want that to be clarified.
Mr Beggs:
Why can the Bill not make that provision? I am not necessarily suggesting that it should be made now, but the Bill should provide ability for that provision to be made in secondary legislation. Has the judgement been based on the fact that the Minister is not minded to go down that route?
Mr D Armstrong:
I cannot comment on whether the OLC took the Minister’s view into account when advising us not to include that provision in the Bill.
Mr Beggs:
In general, does the OLC take the Minister’s view into account?
Mr Brogan:
The judgement was made on the basis that the Bill would have to make provision for the traffic commissioner’s terms of employment — that is, the hiring and firing. In GB, the traffic commissioner system is contained outside of the Goods Vehicles (Licensing of Operators) Act 1995. From a purely legislative point of view, it would be more appropriate for a traffic commissioner to be instituted under stand-alone primary legislation. It should not be attached to the Goods Vehicles (Licensing of Operators) Bill, which purely concerns licensing and does not — in any shape or form — involve the powers of an individual traffic commissioner.
Mr Beggs:
I understand what you say about wanting to use separate legislation to institute such a commissioner. However, would any provisions be required in the Bill to make that mesh in more easily, should that be the route that is taken?
Mr Brogan:
If a decision were made to institute a traffic commissioner, it would be a simple matter of amending the Bill to allow the powers that are invested in the Department to be invested in a traffic commissioner, and he or she would take over that role. It would not be impossible. It would be a straightforward procedure, but another Bill would be required.
Mr Beggs:
Could that provision not be added now, so that the Department would not have to amend the primary legislation, should a traffic commissioner be required in the future?
Mr Brogan:
We could consider that, and I will certainly seek advice on it.
Mr I McCrea:
We are talking about the Goods Vehicles (Licensing of Operators) Bill. However, you are referring to buses and other types of transport. Surely a separate Bill would be needed to incorporate the other two types of transport.
Mr Beggs:
My point is that where possible, we ought to avoid having to come back and initiate, or amend, primary legislation. We are spending a great deal of time discussing the matter now, and a subsequent amendment could follow a similar line. If that provision were in the Bill, it would be a matter of an amendment, which would be much easier.
Mr Brogan:
The Bill has the power to create an Order and propose a draft Order that would amend the Bill. That can be done. That power is not used often, but we can seek advice as to whether it could be used in such a situation.
Mr Beggs:
I look forward to hearing your advice.
The Chairperson:
The Committee will write to the Department to seek agreement to having some of the powers in the Bill changed from being subject to negative resolution to being subject to affirmative resolution in accordance with the comments that have been made by the Examiner of Statutory Rules.
Thank you for your time.