COMMITTEE FOR THE ENVIRONMENT
OFFICIAL REPORT
(Hansard)
Goods Vehicles (Licensing of Operators) Bill
06 November 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 Alastair Ross
Mr Peter Weir
Witnesses:
Mr Donald Armstrong )
Mr John Brogan ) Department of the Environment
Mr Simon Kirk )
Mrs Gillian McIntyre )
The Chairperson (Mr McGlone):
Present today are Donald Armstrong, John Brogan and Gillian McIntyre from the Department of the Environment. I ask them to join us at the table. There are about 10 minutes before we must suspend proceedings for the Remembrance service. That should allow enough time for an overview.
Mr Donald Armstrong (Department of the Environment):
I suggest that we handle the discussion by, first, examining some of the papers that were provided to the Committee: the planning paper, the parking paper, and the paper on in-scope and out-of-scope vehicles. Afterwards, we can move to the clause-by-clause scrutiny of the Bill and deal with issues as they arise. I am conscious of what Mr Ford said about general issues. Simon Kirk is here to observe the discussion with regard to planning issues. It seems prudent that rather than have Simon return to the meeting after it is suspended, we deal with planning matters first. Therefore, the paper that you were sent on planning —
The Chairperson:
So, you expect the planning issue to be sorted out in 10 minutes, Donald?
Mr D Armstrong:
Well, we can try.
The Chairperson:
Simon, I invite you to come forward and sit at the table.
Mr D Armstrong:
I want to make a comment about planning. At our previous meeting, there was confusion about what the term “operating centre” means. We have considered the matter, and because it will be difficult to change the term from “operating centre”, it appears that we are stuck with it. However, we can redefine “operating centre” so that it is abundantly clear to people what the term means. Therefore, an operating centre would be a place from which a vehicle works and is kept overnight, or simply where a vehicle is kept overnight. An operating centre can, therefore, be a depot where vehicles come in and out and are kept. Equally, an operating centre can be a place where a vehicle is parked off-road and where nothing else happens, for example, at someone’s house. We must keep in mind that an operating centre can be either of those places, which are distinctly different in character. That affects how planning is dealt with.
The Chairperson:
I know that Mr Clarke will want to comment on that issue. I have considered that definition, and although it is a bit more expansive than the previous definition, I do not believe that it deals with the planning issue. In essence, the place from which a vehicle works can be instantly equated to a business, which brings us back to the definition of “operating”, and the definition of “operate” is “work”. I am, therefore, a wee bit concerned. Although you have clarified the term for the Department, in doing so it may make the term more expansive and, therefore, more difficult to define for planning purposes.
Mr D Armstrong:
I hope not.
Mr Simon Kirk (Department of the Environment):
I do not think so, to be honest. We clarified our position, which, in summary, is that there are no operational planning issues about drivers who simply park their vehicles at their properties overnight. Although a number of my colleagues in the enforcement sections have cases in relation to unauthorised haulage depots, none has cases in relation to single vehicles, and none of them expects any enforcement action.
The Chairperson:
Are there any cases concerning multiple vehicles?
Mr Kirk:
Although I have no details, a number of cases involve the investigation of unauthorised haulage depots from which more than one vehicle operates and in which more is going on than drivers simply parking their vehicles at their properties at night.
Mr T Clarke:
We are as clear now as we were a few weeks ago. It is as black as closing one’s eyes. My experience of the Planning Service is that unless it is in black and white for everybody to understand, the woolly conversation that we have just had is as useless as a lot of the other conversations that we had with the Planning Service in the past. I am not content with that description. At its last meeting, the Committee asked for a paper from the Planning Service to outline the position exactly.
The Chairperson:
We received a response, but it raises further issues.
Mr Beggs:
There are existing Planning Service regulations that clarify where businesses can operate. What, if anything, does this proposal change about the single-owner operator?
Mr Kirk:
From a planning point of view, it does not change anything. People parked commercial vehicles overnight at their properties before this Bill existed. Enforcement action has not been taken against a single vehicle being parked. We may have taken enforcement action against unauthorised haulage depots that operate more than one vehicle —
The Chairperson:
Can a haulage depot be defined as a location that operates more than one vehicle? Does a single location that operates two vehicles qualify as a depot?
Mr Kirk:
It becomes less clear cut, because the specific nature of the site would have to be considered. I presume that a number of cases involve owner-drivers who operate from rural locations. If a part-time farmer has a part-time haulage business, he might be able to park two vehicles inside a large farm complex without a material change of use taking place. However, in a residential area, it is unlikely that somebody would be able to park two vehicles within their curtilage without, for example, hard-coring part of the garden or changing the use of part of the site.
The Chairperson:
I am sure that everyone in this room can think of a family enterprise in which a father and a couple of his sons are engaged. If that involves more than one vehicle, we know what that means, and that gives me cause for concern.
Mr Beggs:
I presume that that is a relevant issue before any new legislation is implemented. The discussion is, therefore, about the effectiveness of existing regulations rather than what is being discussed in this Bill. Is that correct?
Mr Kirk:
That is correct.
Mr T Clarke:
Are we saying that people who are already involved in such operations are fine, but anyone who wants to start a new operation cannot?
The Chairperson:
He is not saying that. The issue concerns those operations that have not been drawn to the attention of the Planning Service.
Mr Boylan:
We are still faffing about with the issue. The issue is whether a business is operating from home, whether Planning Service perceives that, and whether a van or other vehicle is used. That is where clarification is needed. The Department is making the mistake of thinking that someone is just getting into a vehicle and driving to work. There could be a perception that someone is operating a business from home — for which planning permission is required.
Mr Kirk:
Planning permission is not always needed in order to operate a business from home.
Mr Boylan:
That is why the Committee needs clarification on this matter, so that Planning Service will not misconstrue the issue. The question is whether a business is being operated from home, and, in rural areas, that does not happen; it is not allowed. Existing business are established, but any new businesses — and there will be a lot of them — will need licences.
Mr Kirk:
The key issue in Planning Service is whether there is a material change of use if a business is being run from home. If there is no material change of use then no development has taken place and, therefore, planning permission is not required. That is set out in the report. When trying to assess whether someone is running a business from home, the Department will find out whether planning permission is needed in order to run that business from home.
The Chairperson:
Yes. Those are the questions.
Mr Boylan:
The fact that they will require a licence under which to operate.
Mr Kirk:
That is a separate consent. There are a whole range of consents; for example, one might require planning permission or building control. A licence may be required under one statutory regime, but that does not necessarily mean that planning permission will have to be applied for automatically.
The Chairperson:
We know that; we all come from areas where such situations exist. However, the issue is whether an operator’s licence will directly result in a read-across to Planning Service. You have already drawn us into the territory into which we knew that we would probably be drawn. One single vehicle operating from an operating centre is not really a problem. However, problems emerge once it goes beyond one vehicle when, potentially, operators could face the situation of enforcement and such issues that cross our desks every day. That is the issue.
Mr Armstrong:
Planning rules for land use already exist and thousands of people are already complying. The legislation that we are bringing in should not make any material difference to that process.
The Chairperson:
I beg to differ. The Department will have formally designated operating centres. There is, potentially, a read-across of names and addresses to DOE Planning Service for formal designation — and I would be surprised if there were not. That draws us into other issues and difficulties that some members would potentially see as being a problem in rural areas.
Mr Armstrong:
Is Planning Service’s contention not that its decisions on land use are made irrespective of what designation is on the land? The fact that there is none on it now, and that there will be one on it in the future, does not make any difference as to how it designates the land.
The Chairperson:
No.
Mr Armstrong:
Are you looking for Planning Service to say simply that because a place is designated, an operating centre will not, in itself, make any change in relation to planning?
The Chairperson:
No.
Mr Weir:
Leaving aside the operators, all of us will, at some stage, have had various complaints from constituents about so-and-so operating a business from home or whatever, and for which they clearly do not have planning permission. Will there not be confusion when Planning Service points out that it is perfectly OK for so-and-so to operate, when the person who is complaining says that that person has an operating centre, so how does that not constitute a business that needs planning permission? That person will also be able to point out that someone else has an operating centre — albeit in different circumstances — that requires planning permission. The situation will, potentially, cause a lot of confusion for operators and for those who complain. People will have difficulty explaining the difference.
The Chairperson:
I knew that this issue would take us into another area, and it is one that we will have to revisit.
I am aware of the fact that members will be leaving the meeting at 10.35 am to attend the service. A break of three quarters of an hour will allow people to concentrate their minds, as that issue will prove to be quite a sticking point. The Committee will reconvene at 11.30 am.
Committee suspended.
On resuming —
The Chairperson:
I almost said that we should start where we finished; however, we were not finished. We shall return to the issue that was being discussed. Have you had a chance to give it any further thought?
Mr D Armstrong:
Yes, for an entire hour.
The Chairperson:
Have you come to any definite conclusions?
Mr D Armstrong:
The issue that you want to resolve is whether designating a place as an operating centre will have a planning impact, or is a planning concern. Simon can respond to that factual query. The designation of operating centre is already in place for the hire-for-reward sector in Northern Ireland, and has been for many years. As Simon mentioned earlier, it has not had any impact on planning. It is already established and working in legislation. Therefore, in fact, the proposal is not new; it is simply an extension of that definition to the own-account sector. The current definition is in place and works well. We propose that we explain more clearly the definition of an operating centre. Simon can comment on that point in order to satisfy the Committee on the designation’s impact on planning.
Mr Kirk:
Perhaps, if you seek specific details, we should provide a written answer. Are you saying that because premises are designated as an operating centre, you feel that, automatically, we will take enforcement action?
The Chairperson:
It is not that that will happen automatically, but that there would be read-across that could have implications or consequences for planning, albeit not in every case. You touched upon that when you mentioned moving from single to multiple vehicles, which would flag up issues with Planning Service straight away. I read your letter and considered the circumstances to which it refers. It outlines questions, rather than potential solutions. I understand that every individual case must be considered on its merits or demerits. Our concern is that a form of read-across exists.
Mr Kirk:
If someone did something that was unauthorised or about which we had concern, it would not matter whether that person had an operating licence. We would still investigate the matter. Every year, we receive many thousands of complaints that must be investigated. Therefore, if someone did something that was potentially unlawful under planning legislation, we would investigate the matter, regardless of what is contained in the Goods Vehicles (Licensing of Operators) Bill.
Mr T Clarke:
When Donald defined an operating centre earlier, he used the words “working from”. Many people “work from” premises, but it is not defined as an operating centre. At the minute, they are only parking at the residence. However, once that building is defined as an operating centre, they would be deemed to be working from it. The Planning Service may want to look at some drivers who park at their homes, but, at the moment, there is very little that it can do. However, once we use Donald’s term “working from” and define the premises as an operating centre, it becomes, in effect, a place of business. I have serious concerns about that.
Mr D Armstrong:
Let me clarify the matter: my suggestion was that we amend the definition of operating centre to mean the base or centre from which a vehicle normally operates and/or is normally parked when not in use. Therefore, it would not necessarily mean that the vehicle is operating from the premises — it may be operating from there, or it may simply be parked there when not in use.
The Chairperson:
Did you say “and/or”?
Mr D Armstrong:
Yes. The vehicle is operating from the centre and it is parking there, or it is just parking there. So, there are two meanings within that one definition.
Mr T Clarke:
That makes it worse.
Mr D Armstrong:
It should not make it worse in the sense that it is an operating centre, and a person can park there but not be working from it. Would the Committee be satisfied if the Planning Service were to say that because a place is designated as an operating centre, that in itself would have no planning impact, nor would it influence planning as regards land use?
Mr Weir:
I am trying to bridge the gap. I appreciate your comment about what the Planning Service could say, but what is to stop wording of that nature, however it is phrased, on the face of the Bill?
Mr D Armstrong:
As far as planning is concerned?
Mr Weir:
Whatever way you want to phrase it, a line could be included in the Bill to say that that the granting of an operator’s licence will not have any implication for the Planning Service.
Mr D Armstrong:
I am not sure that we could do that within the competence of a goods licensing Bill.
Mr Weir:
I do not know whether there is a form of words that could be used. Given some of the concerns that have been raised about this issue, I do not believe that people would feel that a letter of comfort — for want of a better expression — from the Planning Service would be sufficient. Something much more explicit is needed.
The Chairperson:
We will have to park the issue. We will not resolve the planning matter today. Could the Department try to find a more satisfactory form of wording that would resolve the problem? My feeling is that we will not get past the matter today.
Mr Weir:
Whatever the solution, it must be legislative. With the best will in the world, the head of the Planning Service can say such and such, but in a year’s time somebody different could be in charge and could decide that the service no longer holds that view. Therefore a statement from the Planning Service does not carry much weight or offer much reassurance in this case. Whatever is done by whatever formula must be reflected in an amendment to the Bill. There should be some written assurance on the matter.
Mr Ford:
It would be ideal if the matter could be dealt with in the Bill. Given the nature of the Bill, I can see where problems might arise, but the Minister should make the matter explicit in a statement when introducing the Bill. As I understand it, statements that are made in the Assembly when legislation is being considered have more force than a circular from the Planning Service. That might be a solution to the problem.
Mr Beggs:
I support that idea. It would be particularly pertinent, given that the Minister has responsibility for planning as well as road safety and vehicles.
The Chairperson:
It would be helpful if, between yourselves, you could come back to the Committee with some sort of resolution to the problem, or options for a resolution. Simon, I know that you have to leave now; thank you for attending.
Let us move on to the document on general issues, unless there is anything else?
Mr D Armstrong:
We were to deal with two further papers before that: the first on the parking issue and the second on vehicles that are out of scope or in scope of the legislation.
The second paper aims to give the Committee an idea of which vehicles are covered by the legislation and which are not. There are several issues to consider, such as what is the gross weight of a vehicle that has an unladen plated weight, and so forth. We examined the Bill, which matches the current legislation in GB and contains the guidance principles currently used in Northern Ireland for the hire-for-reward sector.
Any vehicle weighing over than 3·5 tons is in scope of the legislation. When a trailer is attached to a vehicle, it becomes a combination. If that trailer’s unladen weight is under 1020 kgs, that weight does not count towards the overall weight of the combination. Therefore, a trailer of up to 3·5 tonnes could pull a trailer that has an unladen weight of under 1020 kgs. If that is not the case, the combined weight of trailer and vehicle come into the scope of the legislation. On that basis, we provided for the Committee a series of photographs of vehicles that are either in scope or out of scope to give members an idea of what the legislation covers.
However, it is complex, as members will probably agree. We have been trying to simplify that, and one of the amendments that we are considering would facilitate much simpler regulation. To put something simpler on the face of the Bill would be a huge risk. Therefore, we propose to amend the Bill by removing schedule 1 and replacing it with something much simpler.
Another issue that has arisen is that the current GB legislation does not comply with EU directives on trailers under 1020 kgs. I spoke with officials in GB yesterday, and they propose to amend that legislation, but not until further EU regulations have been introduced. It would probably not be prudent for us to go ahead, knowing that a change is due and that the figure of 1020 kgs is not up to EU standards for the hire-for-reward sector.
Mr Beggs:
You said that you are not satisfied with the current definition of a small goods vehicle, but you said that the effect of changing it might be that a considerable number of additional vehicles that do not come under the legislation in other parts of Great Britain would do so here.
Mr D Armstrong:
That is currently the case here.
Mr Beggs:
You seem to be dissatisfied with the fact that, according to the GB definition, many escape the legislation and that has led you to propose amendment No 1 in the provided document. Is that correct?
Mr D Armstrong:
The legislation is very woolly, and it is difficult to interpret it on the roadside. One has to run to check whether a trailer is plated or unplated and whether the weight on any plate is a laden weight or a gross weight. There is much complexity involved.
Mr Beggs:
You stated that a considerable number of vehicles will be out of scope of the GB definition. Is Northern Ireland, therefore, to be used as a guinea pig for adjusting that definition? The regulations must be widened, but there is a danger of widening the net too far and creating too much bureaucracy. There is a balance to everything, so I am trying to gather further information on how much wider this proposed amendment is compared with the legislation in England.
Mr D Armstrong:
We want to ensure that people are clear on whether they are in scope or out of scope. At present in Northern Ireland, it does not matter whether the combination is under 1020kgs. Any combination over 3·5 tons is in scope, and that is much more restrictive. However, enforcement officers have been applying that standard because the other one is so restrictive. We must consider something that enables us to allow the small cars that pull trailers, and so forth, to be out of scope, because we do not want everyone to be caught up in the legislation.
The Chairperson:
That would be very difficult. How can the weight of a vehicle, travelling on a road with a trailer behind it, be determined? That vehicle would have to be stopped and weighed, and that is unrealistic.
Mr D Armstrong:
It is a very difficult and unwieldy thing to handle. Currently, the GB standard is being used, even though it does not apply here. Therefore, the Department wants to introduce a simpler mechanism.
Mr Beggs:
If I am reading this correctly, the Department is proposing to remove it from schedule 1 in order to create greater flexibility. Do you propose that any subsequent amendments or changes to that definition be enacted through affirmative resolution? I am conscious that greater flexibility gives more power to the Department, and I feel that it should be subject to affirmative rather than negative resolution.
Mr D Armstrong:
I have no problem with it being affirmative. That is not a big issue for the Department. The issue is that if it remains in the schedule, when the Bill is subsequently passed, it will tie us down.
The Department needs more time to examine what is the best solution for Northern Ireland. Furthermore, we need to examine what Europe requires in relation to the hire-for-reward sector, and then apply that. The Department’s view is that it is inappropriate for it to remain in its present form in schedule 1. We require more time to work on it. It is possible to understand what that is saying, who it includes and who it excludes, but it is very hard to work with. Indeed, we have been working with it for a number of years, and it is still hard to grapple with. We need to simplify it a lot.
Mr Weir:
In relation to the European changes, presumably you will have a rough idea of those changes even if you do not know their precise nature. Perhaps that provides another argument for ensuring that there is some flexibility, so that when those changes are made that they can be more easily incorporated into the legislation.
Mr D Armstrong:
The provision currently contravenes a European directive. That is one change that should be made. Furthermore, Europe is currently introducing a regulation that will tighten things up in this area, and it hopes, through that EU regulation, to remove a vast number of exemptions from the hire-for-reward sector. We must see what is to be introduced and, as you say, move on and allow ourselves the flexibility to respond to that.
Mr T Clarke:
Clause 1 states that if a vehicle is used for hire or reward in connection with a trade or business an operator’s licence may be required. I am aware that the whole idea of this is road safety, but are you saying that it is unsafe for vehicles that are 3·5 tons or more?
Mr D Armstrong:
No. I was not making a road-safety comment. In fact, I have not made a pro or —
Mr T Clarke:
I thought that it was the nature of the whole —
Mrs Gillian McIntyre (Department of the Environment):
Why is it set at that threshold?
Mr D Armstrong:
Why is the 3·5 ton threshold set?
Mr T Clarke:
No. Are you saying those vehicles that are 3·5 tons and above have more serious implications for road safety?
Mr D Armstrong:
No, I was not saying that. The 3·5 ton threshold is set in different ways. That threshold applies to tachographs and other legislation relating to the carrying of goods, and 3·5 tons is the appropriate weight at which to set it.
Mr T Clarke:
Transit vans do not have tachographs.
Mr D Armstrong:
Those under 3·5 tons do not.
Mr T Clarke:
Or those at 3·5 tons.
Mr D Armstrong:
A 3·5 tons transit van does not require a tachograph. However, vehicles over 3·5 tons do require one.
Mr T Clarke:
My problem is that I do not believe that this is being introduced for the right reasons; I think that the Department is trying to catch all those smaller vehicles, for the wrong reasons. By doing so, it is leaving a complete industry that does not have to be licensed. Therefore, are we saying that it is safe if you are not doing it for hire and reward, but unsafe if you are?
Mr D Armstrong:
The EU legislation deals only with the hire-for-reward sector; it does not deal with the own- account sector. However, it is a fact that heavier goods vehicles have a worse safety record than other vehicles.
The letter of 24 October 2008 is a response to the question about parking goods vehicles in residential areas. There is no legislation about parking goods vehicles that is specific to residential areas. In the letter, we set out what we could find in relation to parking goods vehicles and other vehicles on the road, including parking at night.
Under the Road Traffic ( Northern Ireland) Order 1995, it is an offence — with certain exceptions — to park a heavy goods vehicle on a road verge, a central reserve or a footway. A heavy goods vehicle is defined as one that is over 7·5 tons. There is no general offence that prevents non-heavy goods vehicles from parking on footways, except where there are clearways.
Over and above all of that, as far as parking on the road is concerned, it is an offence to cause a vehicle to wait on a public road, except in a lay-by or a designated parking area within 15m of its junction with any other road. Unfortunately, I once came foul of that law — I did not realise that it is an offence to park within 15m of a road junction.
The Road Vehicles Lighting Regulations ( Northern Ireland) 2000 state that a vehicle’s lights must be on if the vehicle is parked on a road between sunset and sunrise —the exception for goods vehicles is if the vehicle is parked in an area in which the speed limit is 30 mph or less. Those are all of the roadside-parking restrictions that we found.
The Chairperson:
We now move to the overview document. The cover letter is dated 31 October 2008. There are a few issues, some of which we touched on earlier. Mr Ford and Mr Trevor Clarke raised issues, and I also have a few. Let us deal with paragraphs G1 to G4 in the table of general issues raised in relation to the Bill.
The Ulster Farmers’ Union (UFU) raised the issue about extra-regulatory impact. That is covered in G1, which states:
“The use of agricultural vehicles will be examined in the context of determining vehicles or functions that will be exempt from the requirements”.
I realise that this issue will come up later, but at what point will we have the list of vehicles that are exempt and, more importantly, the activities from which they are exempted?
Mr D Armstrong:
We have already started work with various stakeholders, including the UFU, to identify cases or justifications for exemptions. They will obviously have to be provided before the regulation stage is reached, because the Bill only provides the power to exempt. Currently, we do not have a timetable for producing proposals that detail what will be exempt and what will not. Obviously, that must be done before the regulation stage is reached, but we do not have a timetable. It is one of the things that we have already started work on.
The Chairperson:
That is important. Members recognised that that is a major issue.
Mr D Armstrong:
I accept that, Chairman.
The Chairperson:
G2 states that:
“Road freight licensing is not a tax measure”.
Where did that come from?
Mr D Armstrong:
It came from a point that was made by some people who attended the briefing sessions. They said that road-freight licensing was just a way for the Government to drag in more stealth taxes. The phrase “stealth tax” was used at a number of those briefing sessions. Regulation and tax are two different things. Road-freight licensing is not a tax because no revenue goes to the Government. All the moneys that are lifted through fees are used in the administration of regulation, because the administration and the cost must balance out.
The Chairperson:
We knew that it would not be, because it cannot be.
Mr D Armstrong:
That was where it was raised by people who asked whether this was a stealth tax by Gordon Brown.
The Chairperson:
Does any member have an issue with page 4 of the summary of general issues? If not, are there any issues related to page 5? If not, we move to page 6. Do members have any issues in respect of page 6?
Mr Ford:
Yes, I have issues in relation to G15 and G16 on page 6. I am fairly sure that the Department’s representatives heard me say a fortnight ago that the Committee expected to hear from he Department on the issue of a traffic commissioner. I am upset that the Committee has heard nothing other than a fairly dismissive response that fails to address widespread concern in the Committee, particularly since we heard from Mrs Bell. I want to hear a bit more detail from Donald or whoever as to what the Department’s current position is, particularly as they no doubt listened intently to what the Committee said on previous occasions.
Mr John Brogan (Department of the Environment):
I was not aware that the Department was expected to respond in writing.
Mr Ford:
I will happily accept a verbal response.
Mr Brogan:
If the Department receives a request, it will respond in writing within a few days. However, I will try to answer the concerns.
The Bill itself is exclusively a licensing Bill that contains all the powers that a traffic commissioner in GB would exercise. The appointment of a traffic commissioner conventionally lies in a separate, dedicated legislation. The Department is considering the possible impact of the appointment of a traffic commissioner in order to deal with not only the licensing of goods vehicles but with taxis and bus operators. It remains to be seen whether those deliberations will lead to a separate piece of legislation on the appointment of a traffic commissioner.
The Department considers that it would be inappropriate to legislate for the appointment, the constitution and other requirements for the post of a traffic commissioner within the Goods Vehicles (Licensing of Operators) Bill.
Mr Ford:
Will John explain why he uses the term “inappropriate”? Is he saying legally inappropriate, or departmentally and conveniently inappropriate? Bear in mind that the long title of the Bill is:
“A Bill to make provision concerning the licensing of operators of certain goods vehicles.”
Therefore, a traffic commissioner is entirely within the competence of the Bill. A traffic commissioner might have a role in relation to buses, taxis and other operators, but the key problem is goods vehicles, and that is the area in which the traffic commissioner is most needed.
The Chairperson:
As a follow-up to Mr Ford’s question, has the Department been given particular direction on the issue of a traffic commissioner?
Mr D Armstrong:
Before the Bill was drafted, the Department had set in train a programme to investigate how to manage the operator licensing of taxis, buses and freight. An independent traffic commissioner is only one option that might be considered. It may well be that the course proposed in this Bill is appropriate. Therefore, without prejudicing the outcome, the Department considers the role of an independent traffic commissioner as just one possible consideration. We have not progressed that far.
The concentration has been on getting this Bill completed. The Taxis Bill is finished, and we are working on bus regulation in conjunction with the Department for Regional Development. In terms of competing for resources, the traffic commissioner is a programme of work that has not progressed that far. There was not a pressure on the Department to appoint a traffic commissioner. The Department removed the measure from this Bill in order to move the Bill forward, after which all the issues will be considered in the round. It may be — and we will come back to the Committee on this — that an independent traffic commissioner is not the best way forward for Northern Ireland. Therefore, the Department cannot presume to put that measure in the Bill.
Mr Beggs:
Should the Department come to the conclusion that a commissioner is the way forward, will the Bill have to be amended? Is there sufficient flexibility, in your opinion, to enable that to happen without having to re-legislate?
Mr Brogan:
The Department consulted the Office of the Legislative Counsel (OLC) at the outset of the drafting of the Bill. As far as I know, the Bill could simply be amended to the effect that any reference to “the Department” is changed to “traffic commissioner”. The Bill gives traffic commissioners the necessary powers to deal with operator licensing.
Mr D Armstrong:
During the drafting of the Bill, the Department suggested the inclusion of a clause that would apply if a traffic commissioner were appointed. However, it was recommended that we omit that.
Mr Boylan:
I have concerns about independent challenges to operators and how the Department will implement the legislation. Donald mentioned the possibility of examining that issue in case there is ever an independent challenge. I am concerned that the Department is regulating all of this; there must be scope for another body — which may or may not be a traffic commissioner — to handle some of the regulation. That matter must be considered.
Mr D Armstrong:
The Department’s biggest concern was that those in charge of the enforcement and prosecution would be too close to those taking the decisions. As I outlined at the previous meeting, the Bill offers two options. The agency, in its current form, can deal with that entire area or we can separate those functions. If we do the latter and it is subsequently decided that an independent traffic commissioner is the best option, it will be much easier to transfer. However, if the agency assumes sole responsibility now, the administrative transfer will be much larger. Although the Department and the agency are, in a sense, legally one entity, there is some separation. We would prefer to separate the Department and the agency’s roles.
Mr Boylan:
During your discussions with operators, did they raise concerns about the need for an independent challenge? I am concerned that the same people are implementing, operating and legislating.
Mr D Armstrong:
The agency will be responsible for enforcing legislation on the ground. The Department — rather than the agency — will make decisions about the traffic commissioner. During the briefing and consultation process, much of the industry was happy with the Driver and Vehicle Agency, subject to that body having more resources for enforcement. The general tenor was that the roles should be separated; there was not so much emphasis placed on independence. However, the Bill outlines the provision for appeals to the upper tribunal, which is a distinct UK-wide body that reviews the decisions of traffic commissioners and will review the Department’s decisions. We hope that the Department’s structure allows for management of the regulation to be separate from the agency.
Mr Ford:
John and Donald have made reasonable responses that suggest the legislation could be amended relatively easily. However, the blunt reality is that the timescale for getting legislation, especially new legislation, through any legislature can be extremely extended.
Mr Gallagher:
Especially if we do not have one.
Mr Ford:
I was going to resist making cheap points about the lack of a functioning Executive.
Can Donald tell me what the current timescale is for consultation on the possibility of appointing a traffic commissioner? Can you consult your crystal ball and tell me that if the consultation process concluded that a traffic commissioner was a good idea, how long would it take to legislate for that?
Mr D Armstrong:
Given that we are examining resources, that is a tough question.
Mr Ford:
At least I was smiling when I asked.
Mr D Armstrong:
It has taken two or three years to reach this stage with this Bill. Therefore, it will take another two to three years to introduce more primary legislation. A fair bit of work must be done to examine the possibilities and options.
Mr Ford:
Although the departmental team is constrained by a number of factors in what it can say here, the Committee could take an entirely other view, namely that doing something about a traffic commissioner is sufficiently important that it should be done now, rather than wait for a minimum – and I think that you are an optimist – of three years.
Mr D Armstrong:
The Department would be very happy to hear such a recommendation from the Committee.
The Chairperson:
David, are you formalising that into a proposal?
Mr Ford:
It remains my belief, based on evidence given to the Committee, that a traffic commissioner could exercise positive functions, starting with the freight industry and, potentially, adding buses and taxis later. That is within the scope of this Bill, and the Committee should consider its own amendments to that effect; even if officials — who are being as helpful as they can — are unable to agree with us this morning.
The Chairperson:
Mr Beggs and Mr Ross wish to comment. Is your point about this issue, Roy, because Alastair has indicated that his point is?
Mr Beggs:
My point is not about this issue – it is slightly ajar from it.
The Chairperson:
I want to tease out this matter first of all, if that is ok, so I will take Alastair’s point first.
Mr Ross:
We need to be cautious about going down this route. Beverly Bell, Traffic Commissioner for the north western traffic area, was impressive when she gave evidence to the Committee on 9 October, 2008. However, for years we have said that we want devolution in order that we could take control of matters and have power in local hands. Some people now seem to want to give that power away to quangos and independent commissioners. We need to be cautious, and ask whether we really want to do that.
At least if the Department retains control, it is more accountable to the Committee and the Minister. We need to be very cautious about moving to a stage where we want suddenly to give power away to independent bodies or quangos, whether on environmental governance or the issue of a traffic commissioner.
Mr Gallagher:
That is especially true if four or five traffic commissioners are needed.
Mr Boylan:
I certainly agree with what Mr Ross said.
The Chairperson:
Mr Beggs indicated that he wanted to speak. I am getting conflicting messages.
Mr Boylan:
My point is about the same issue. I have no objection to what Mr Ross is saying, but there must be an independent body within the Department in order to ensure that the operators have an opportunity to challenge decisions. I am not saying that, down the road, a traffic commissioner is the person to do that job; I am just saying that operators must have the opportunity to challenge if necessary. Donald alluded to such a body, and there is scope there for consideration. However, I am not advocating a traffic commissioner.
Mr Beggs:
I could say something about a traffic commissioner but I do not know enough about the subject. Detailed work needs to be done on the matter. However, with regard to the legislation before us: will the Department not need extra time in order to amend the primary legislation when that separate piece of work is completed?
Mr Brogan:
The inclusion of even a reference to a traffic commissioner would require the Bill to define the commissioner. If a commissioner does not exist, the role cannot be defined.
The Chairperson:
The Committee needs more information and detail about the rolling function of a traffic commissioner and any process that would be needed if it were to be incorporated into the legislation.
Mr Ford:
I wanted to try to be helpful by avoiding discussing this matter. In fairness – and following from what the Chairperson said – if the Committee did not give formal notice that it wanted a formal response last time, the Department’s response here refers to the consultation. If we had papers that provided the full detail of that consultation, which could be considered alongside the evidence that we received from Mrs Bell, the Committee would be in the position to consider that in detail.
The Chairperson:
And better informed, anyway.
Mr Ford:
Perhaps somewhere between Alastair Ross’s view and mine, the Committee could decide whether a traffic commissioner is appropriate.
The Chairperson:
If we may move to page 7 of the general issues document.
Mr Beggs:
Issue G21 states that bringing all vehicles over 3·5 tonnes into the system would lead to a more equitable cost base for licensing because, at present, only the “hire and reward” sector pays. I would like further information about the second sentence of G21, which states:
“As this accounts for about 20% of the vehicles, the economies of scale of bringing the other 80% into the scope would ensure a fairer distribution of the costs.”
What accounts for that 20%?
Mr D Armstrong:
If one looks at the size of the industry in Northern Ireland, 20% of that industry is in the for-hire-or-reward sector. The other 80% accounts for the percentage of unlicensed vehicles in the industry.
Mr Beggs:
Thank you.
The Chairperson:
The Committee will now consider, page by page, the key issues that were raised about various clauses in the Bill. Do you want to say anything by way of introduction before we begin, John?
Mr Brogan:
Perhaps I should outline what clause 1 is designed to do, after which we will examine the issues. Clause 1 is fundamental to the Bill because it establishes the general need to hold an operator’s licence. The clause will require the for-hire-or-reward and own-account sectors to hold licences. Clause 1(2) sets out circumstances in which a licence will not be needed. In effect, Clause 1(2) details those vehicles that are exempt from the requirement to hold an operator’s licence.
Clause 1(2)(a) is the subject of our first proposed amendment, and deals with the use of small goods vehicles, which are, essentially, those with a plated weight below 3·5 tonnes. In its present form, clause 1(2)(a) refers to the use of a small goods vehicle within the meaning given in schedule 1. As was said earlier, however, we were proposing to drop schedule 1 in favour of an amendment, and insert a new sub-section (2)(a) to provide the Department with the power to prescribe those combinations of articulated vehicles that are out of scope of the Bill. That was done in relation to the DALO letter prescribing the photographs.
Mr Beggs:
In defining the type of vehicles that may lie within or beyond the scope of the Bill, will you take into consideration timing issues? People with vehicles that they are currently using may need time in order to ensure that they comply with any legislation. Therefore, time may be required to allow for precise boundaries to be defined and adjustments to be made.
Mr Brogan:
That is a good point and one that we have considered. The Department wants to adopt as pragmatic an approach as possible to the introduction of the new licensing scheme. Clause 57 of the Bill deals with transition arrangements for the introduction of the new licensing system. It is only fair that the Department examines the issue that Mr Beggs raised, so that we can adopt a pragmatic approach. That will avoid a big bang-type scenario when the legislation comes into effect on a Monday morning.
Mr Beggs:
Thank you.
Mr Brogan:
Other exemptions include clause 1(2)(d) which refers to the use of a vehicle of any class specified in regulations. I believe that there was an issue with regard to negative and affirmative resolution of that matter. At this point, perhaps it is appropriate to talk generally about the affirmative and negative resolution issue, which appears in another DALO response.
The Chairperson:
Please continue, Mr Brogan. Members may raise any queries about clause 1 after you have finished.
Mr Brogan:
Since our last meeting, we took further legal advice on the issue of certain regulation-making powers. That advice is on the first page of the most recent letter to the Committee clerk.
The Chairperson:
Is that the letter that was tabled today for members’ information?
Mr Brogan:
Yes.
The Chairperson:
It is dated yesterday, 5 November, 2008. To which paragraph are you referring?
Mr Brogan:
Paragraph 3, under the heading “background”. The advice was to the effect that there is often no right and wrong answer, and that it is a matter for agreement between the Department and the Committee. The letter also states that we need to be careful. The Department hopes to bring forward a composite set of regulations that are in line with those operating in Great Britain. We will have to avoid having certain regulations subject to affirmative or negative resolutions.
The Chairperson:
What are the ramifications of that, in layman’s terms?
Mr Brogan:
They must be all affirmative or all negative. However, we could, perhaps, split that composite set and lift certain elements of it and subject it to affirmative resolution and allow the bulk to go through under the negative resolution procedure. If all the regulations are subject to affirmative procedure, we will have to go through the whole process again for even a minor technical amendment in a few years’ time, and that will take up a lot of Assembly time.
The Chairperson:
Are you saying that we will have to go through the whole procedure again if the regulations are subject to affirmative resolution now? Forgive my ignorance on this matter, but the legal advice that was sought by the Department says that there is often no right or wrong answer on the matter for agreement between the Department and Committee. Therefore, whatever suits a particular situation — be it affirmative or negative — can be used. Is that what you are saying?
Mr Brogan:
That is correct.
The Chairperson:
How will a pick-and-mix approach, so to speak, affect additional changes or amendments that are sought in the future? Will the Department adopt the same pick-and-mix approach?
Mr Brogan:
We could have a set of regulations that contains operational and administrative arrangements — for instance, the application process involved in licensing. The Assembly may not be interested in that, but the Committee would. If that was subject to affirmative resolution and the Assembly looked at it when it was brought into operation, even the most minor amendment would result in an affirmative procedure being adopted in the future. Once affirmative, it is always affirmative.
The Chairperson:
I will call on the expertise of the Bill Office Clerk at this point. Is any aspect of that difficult or procedurally fraught for the Committee?
Bill Office Clerk:
The letter dated yesterday provides the legal advice that was sought by the Department. It states that:
“It was, however, pointed out the need to avoid different elements of a composite set of regulations being subject to different resolution procedures which could potentially prevent the regulations being made.”
That shows that in some circumstances it would not present that difficulty. I suggest to the Committee that if you still feel that you want something by affirmative resolution, the Department could look at it and see whether it will cause a difficulty in the future, and examine a wording that would, perhaps, help the Committee if it decides that something should be subject to affirmative resolution.
The Chairperson:
That is probably the best idea; it is sound advice. Depending on what matter we are addressing, you can advise us on whether the approach that we plan to adopt would create a major obstacle further down the line.
Mr D Armstrong:
If you were attempting to develop a set of regulations for, for example, licensing of operators, and those regulations were subject to both affirmative and negative resolution, the management of which is complex, there might be a problem with workability.
The Chairperson:
Although that might be complex, would it be impossible?
Mr D Armstrong:
It would not be impossible; however, it might be easier to achieve using one method rather than another. If it were all to be subject to affirmative resolution, from then on, everything would be affirmative and subsequent actions might be an unfortunate waste of the Assembly’s time.
The Chairperson:
Returning to John Brogan, are we finished with clause 1?
Mr Brogan:
Unless members want me to deal with each issue individually, perhaps, they would be happy to —
The Chairperson:
You have given us a broad overview and, considering the synopsis contained in the written submission or, indeed, any other matter that members might consider to be important, we can discuss those matters with regard to clause 1.
We are considering pages 9 to 12 of the summary of points raised in relation to the Bill. Do members wish to discuss any of those points?
Mr T Clarke:
I wish to highlight the matters of concern to the Ulster Farmers’ Union (UFU), which are summarised in points 1.2 and 1.3.
The Chairperson:
Those points refer to extending the legislation to include vehicles used for agricultural, horticultural or forestry work, and that brings us back to the matter of exemptions. Consequently, resolving such matters will depend on the extent of the exemptions list.
Mr D Armstrong:
The Bill will provide powers to make the required exemptions; however, those exemptions will not appear in the Bill’s clauses or schedules, but they will be included in regulations.
The Chairperson:
Right.
Mr T Clarke:
When might we get to see that?
The Chairperson:
Do you mean the framework, Trevor?
Mr T Clarke:
I mean the list of exemptions.
The Chairperson:
We asked that question earlier; however, for vague reasons, such as pressures of work, the list has not been compiled yet.
Mr D Armstrong:
Work on that is ongoing. Obviously, the list of exemptions must be finalised before regulations can be issued. However, if you want, we could produce a timetable for when that might happen.
The Chairperson:
We need a timetable, but, surely, it is not such a big problem to list the exemptions. I know that you are planning to engage with stakeholders —
Mr D Armstrong:
With respect, that is the single most difficult matter in the whole of the Bill.
The Chairperson:
We have a fair idea of the issues and of the activities that would be exempted.
Mr D Armstrong:
The Department has consistently said that exemptions will be applied if they are justified. As we liaise and consult with the industry and the various stakeholder groups, including the UFU, we will ascertain which exemptions can be justified and, subsequently, we will produce proposals. Any proposals must undergo public consultation and be brought before the Committee. However, we are some time away from having that list of proposed exemptions. Moreover, given the fact that the EU will be issuing exemption regulations, we must consider the matter carefully, rather than quickly.
The Chairperson:
The Committee has a lot of EU stuff before it today, and such legislation does not appear to move particularly quickly. Can you give us a flavour of the proposed EU exemption regulations, and what is the timetable for introducing them? We do not wish to pass a Bill if the exemptions are linked to something that might not happen for four or five years.
Mr D Armstrong:
The EU will introduce regulations, rather than a directive, and they are expected to come into force in early to mid 2009. Furthermore, in light of that, the Government in GB are planning to review its exemptions. Although I do not have details with me, we have received indications of the exemptions that are likely to be removed. However, they will apply to only the for-hire-or-reward sector. Therefore, we could end up with separate exemption lists for the for-hire-or-reward sector and the own-account sector, and that is another matter about which members may wish to comment.
The Chairperson:
In an attempt to tie the matter down, can we agree that all those measures will affect us? First, when will the pending EU regulations come into force?
Mr D Armstrong:
It will be later than that.
The Chairperson:
In other words, the issue is floating about in the ether, but it is to be met further down the line. The exemptions issue has been a major factor in our discussions with various sectors, some of whom have a more valid claim to an exemption than others. Aside from planning issues, the issue of exemptions is the major factor in the legislation. We would prefer to get that issue tied down and have clarity on it, rather than take the carte blanche approach, which we are expected to take.
Mr D Armstrong:
It is difficult to be tied down to a certain time for coming back to you with proposals for the regulations. I can produce a paper for you on the subject of exemptions that outlines the different factors and their timescales. That paper would be available to the Committee before proposals are brought forward.
Mr T Clarke:
How can we move without that? I read that the Department was considering giving an exemption to the likes of Roads Service.
The Chairperson:
We will come to that later in the meeting.
Mr T Clarke:
I have a problem with an exemption being granted to Roads Service. The legislation is supposed to be concerned with road safety, but Roads Service, the Health Service and other agencies have heavy vehicles.
The Chairperson:
Trevor, we will come to that issue later; it is covered by paragraph 1.10 of the summary table of issues.
Mr T Clarke:
It is linked to the issue that we are discussing.
The Chairperson:
I read the summary table last night, and I marked the issue for discussion.
Mr T Clarke:
People will perceive that the legislation is not for Government vehicles, but for everyone else.
The Chairperson:
I want to tie down the point about exemptions. Donald, you said that you will produce a paper for the Committee on exemptions.
Mr D Armstrong:
I will produce a paper that will outline the EU legislation, and who has, to date, sought an exemption and their grounds for doing so. It is too early to say whether I can tie proposals for that. I need to provide the Committee with information on where we are with that.
The Chairperson:
There are a lot of blank spaces, and the Committee has, invariably, been lobbied about those.
Mr D Armstrong:
I agree. The issue of exemptions is probably the most difficult issue in the Bill, and it must be resolved.
The Chairperson:
Lack of detail on the issue makes it difficult because we have to deal with the theory without the practice.
Mr D Armstrong:
The difficulty with exemptions is that everyone feels that they should have one, and everyone can justify having one. On the other hand, the issue is complex and there are many ways of getting around the exemptions that currently exist in GB. We want to prevent that type of wooliness in favour of a clear, workable and enforceable system, with which everyone can agree. It is not an easy situation.
The Chairperson:
The Committee is being asked to make a stab in the dark on the issue.
Mr D Armstrong:
I feel somewhat under pressure to have to provide you with something so that you are clear. However, I will certainly provide you with a paper.
The Chairperson:
We do need that.
Mr T Clarke:
We should park our consideration of the Bill until we get that paper.
Mr D Armstrong:
The purpose of primary legislation is to introduce enabling powers. The next stage is to produce the regulations within that. The Department intends to follow that staged approach. Already, before the primary stage is finished, we are considering how the regulations will be exercised. That has been ongoing for the past few months, so we are well up to speed.
The Chairperson:
That issue has not been dealt with, but we will get more elucidation on it. Do any members have issues relating to page 10 of the summary table? That covers the matter of exemption, which we have discussed.
Mr Brogan:
Paragraph 1.7 of the summary table mentions exemption for Crown vehicles, and it has been mentioned that that will include the likes of Roads Service and NI Water. Those bodies will not be exempt.
The Chairperson:
Will Roads Service and NI Water, which fall under the category of Crown vehicles, not be exempt?
Mr Brogan:
Those bodies will not be exempt from the legislation.
The Chairperson:
What Crown vehicles do you propose to be exempt from the legislation?
Mr D Armstrong:
We have considered the granting of exemptions by function, rather than by vehicle. For example, an exemption may be made for the function of carrying farm produce. That is the way we are thinking in order to try to find a way around a complex issue.
For example, vehicles that are carrying farm produce such as barley, silage or animals will be exempt. However, vehicles that are carrying sand, stone or building materials — which are not farm produce — will not be exempt, even if they use a large tractor and trailer. That is one example of how a function may be exempt. For example, Roads Service vehicles would be exempt when gritting or carrying out an emergency function on the road but would not be exempt for normal business. The Department is considering whether that type of exemption would be effective. However, those proposals have not been finalised.
The Chairperson:
I require further clarification. Has the Department considered the exemption of certain Crown vehicles? Will those vehicles be dealt with by function, too?
Mr D Armstrong:
We want to deal with exemptions by function rather than because of a person’s profession. That includes farmers, horticultural farming, or whatever the business may be.
The Chairperson:
We will proceed to page 11. Trevor Clarke mentioned Roads Service vehicles, and we have established that exemptions for those vehicles will be designated by function.
Mr T Clarke:
I do not understand how exemptions for Roads Service vehicles will be dealt with by function. Why is a gritting lorry that carries tonnes of material exempt, yet an operator who carries material for hire or reward is not? I have a problem with that.
The Chairperson:
It is difficult to comprehend. Will you clarify that matter?
Mr D Armstrong:
Gritting is, in a sense, an emergency operation to provide safety on the roads. There is no choice but to go out and do it. For example, if someone is assigned to a gritting exercise and is required to have a licence to carry out that task, what will happen if that person does not have a licence? It is a potentially serious situation.
Mr T Clarke:
Why would that person not have a licence?
Mr D Armstrong:
The issue might not arise because if that person is required to have a licence to carry out their other functions, it will cover gritting anyway.
The Chairperson:
Gritting lorries, by nature, have a road safety function because they travel on narrow roads and mountainous terrain. My area — and I am sure that it is the same in other members’ areas — has many hills and mountains.
Mr D Armstrong:
I cited gritting as one function that may be considered as exempt. However, those vehicles have a dual purpose and carry out other Roads Service functions during the day. Those functions will not be exempt. Those vehicles will have a licence anyway, and, therefore, there is no issue with exemption for gritting. We are discussing those matters with Roads Service.
Furthermore, we are discussing issues with the Rivers Agency and the Ulster Farmers’ Union. We are considering whether exemptions should apply to functions or to people in their own right. The current exemption system seems to revolve more around exempting people. That is problematic, because if a person is exempt for a specific function, what happens if they carry out a different function that would not normally be exempt? I cited gritting as an example because it is arguable whether or not that function should be exempt.
Mr T Clarke:
We mentioned exemptions for normal agricultural practice. What about the contractor?
Mr D Armstrong:
For contractors, such as farmers, the produce would be exempt. However, 50% of some contractors’ work may focus on farming produce and some may focus on construction work. They should not be exempt for construction work and should not buy that exemption on the back of another one. It is a difficult area, which is why I am hesitant to say that proposals will be finalised quickly. The issue has greatly exercised the industry and the Committee. Moreover, witnesses who provided evidence to the Committee considered it a big issue.
The Chairperson:
We will proceed to point 1.16. Do members have any issues?
We dealt with point 1.16 earlier. John, can we proceed to clause 2, please?
Mr Brogan:
Before we do so, Chairman, it is prudent that, throughout the process, I highlight any areas where offences can occur. Certainly, under clause 1(5), it is an offence to use a vehicle without an operator’s licence. That carries the maximum fine on the scale, which is £5,000.
I must propose the Department’s amendments to clause 1 before we proceed to discussion on clause 2. There are two separate amendments, which are, obviously, linked. The first amendment is to leave out the words:
“within the meaning given in Schedule 1”
at clause 1(2)(a), and to insert at line 16 a new subsection (2)(a). I will not read out the suggested wording, because members have copies. In effect, it sets the threshold at 3·5 tons and allows regulations to deal with vehicle combinations and articulated vehicles.
The Chairperson:
I want to return to the issue of the relevant plated weight of a vehicle. I speak as a layman. If you spot a vehicle that looks as though it probably fits under that weight restriction — it may be laden or unladen — what would you do? Would you decide to pull the guy in and examine his vehicle?
Mr D Armstrong:
You need to ask enforcement officers that question.
The Chairperson:
It seems difficult to discern whether a vehicle fits in that category unless it is quite obviously laden heavily with goods.
Mr T Clarke:
Does that not refer to any vehicle that is over the 3·5 ton unladen plated weight and that, therefore, it does not matter how much weight is in the back of it?
Mr D Armstrong:
It refers to a gross laden weight — a fully laden weight — of 3·5 tons. The Bill refers to “relevant weight”. Relevant weight could be the plated gross weight of a trailer; the plated unladen weight of a trailer; or the weight of a trailer that has no plated weight. The legislation deals with many combinations.
Similarly, a vehicle, such as a heavy lorry, can have a plated maximum design weight, which would not be the relevant weight as far as we are concerned because the legal weight is the maximum weight. Furthermore, the gross plated weight for the United Kingdom could be different to that of Germany, for example. Therefore, there is a range of plated weights on vehicles — that is why the term “relevant plated weight” is necessary. Enforcers need to know what the legal weights are in their state. Additionally, they need to know what the unladen weights are that are plated on vehicles.
If you examine the pictures that we provided, there is a trailer, which is out of scope because it is so light, but which carries a van that could weigh a ton. The current system is unsatisfactory on that issue.
The Chairperson:
Have members any further comments on that proposed amendment? Do members agree with the amendment as proposed? Do I interpret the silence as “yes”?
Mr T Clarke:
I am not sure at which stage I should say no. Do we accept clause 1 by saying yes?
The Chairperson:
No; because we have sought further clarification. We are accepting the amendment to clause 1 subject to further clarification about the issue of exemptions that we dealt with earlier.
Mr D Armstrong:
Clause 1 provides the power to make exemptions, but what those exemptions would be are dependent on clause 1, so I am slightly puzzled at the concern about approving clause 1.
The Chairperson:
We are not concerned about approving clause 1; we are concerned that we are adopting a clause when we are not fully and comprehensively informed of the issues. That is why we agreed earlier how we will proceed when you report back to us, Donald.
Mr Brogan:
Clause 2 establishes the two different types of licences — the restricted licence and the standard licence. There will be two different types of standard licence.
The restricted licence will allow the operator to carry his own goods as part of his business or trade. He must not carry goods for other people for hire or reward under a restricted licence. There will be two different types of standard licences. A standard national licence will allow the operator to carry his own goods and carry goods for other people for hire or reward in Northern Ireland and Great Britain. The standard international licence will allow the operator to carry goods in the UK and on international journeys, including Ireland.
Clause 2 states that it is an offence to carry goods for hire or reward under a restricted licence and/or to carry goods on international operations under a standard national licence. Fines will be £1,000, which is level 3. That replicates the Goods Vehicles (Licensing of Operators) Act 1995 in GB.
The Chairperson:
No issues arose from the consultation. Do members have anything to add?
Mr T Clarke:
Why are there three different bands?
Mr D Armstrong:
The hire-for-reward sector bands are set in European legislation. Standard licences allow drivers to operate in their own member state and international licences allow operators to cross state boundaries. In such cases, operators need a community authorisation when they are in those countries. Those authorisations are required in the EU. The own-account sector requires a licence that allows operators to carry their own goods. The standards that they require are different — on a standard licence, the operator must have a qualified certificate of professional competence (CPC) person in relation to maintenance. The own-account sector is a lesser standard; operators in that sector do not require that certificate. The requirements are not as high in the restricted area.
Mr T Clarke:
Is there any cost difference?
Mr D Armstrong:
There is no cost difference — it is the same cost across the sectors. Some people in the own-account sector in Northern Ireland have a standard licence because they want to have the option of doing hire for reward when they want to.
Mr T Clarke:
What is the definition of an own-account haulier?
Mr D Armstrong:
An own-account haulier carries his own goods as part of his trade or business. He does not carry anyone else’s goods.
Mr T Clarke:
What licence is a courier company required to hold?
Mr D Armstrong:
A courier company is required to hold a standard licence.
Mr T Clarke:
Is a courier company required to hold a certificate of professional competence (CPC) licence as well?
Mr D Armstrong:
No. A courier company must hold a standard licence; in addition, the company must provide evidence of professional competence in the maintenance of its vehicles.
Mr T Clarke:
Where does the CPC licence come in?
Mr D Armstrong:
The holder of a CPC licence is a person who is certified as competent to provide a fleet maintenance and management function.
Mr T Clarke:
Are there many such people in Northern Ireland?
Mr D Armstrong:
Yes, there are quite a few. Hire-for-reward operators are required by EU legislation to hold a CPC licence. All hire-for-reward operators in Northern Ireland hold that licence. The Department has not extended that requirement to the own-account sector. We will not ask for that extension when restricted licences are introduced.
Many operators in the own-account sector, particularly big companies such as Tesco, already hold CPC licences, even though they are not required to by law.
Mr T Clarke:
I am not worried about those companies. I am worried about the smaller operators who carry someone else’s goods.
Mr D Armstrong:
Current legislation requires those operators to demonstrate that they have that professional competence in their management function. That is an EU requirement.
Mr Ford:
I presume that there are no international implications with regard to the restricted licence for cross-border operators.
Mr D Armstrong:
No. There is no requirement for a restricted licence across the border at the moment.
The Chairperson:
Do members have anything further to add in relation to clause 2?
Mr T Clarke:
May I ask Donald to provide the Committee with a list of people who can provide that professional competence for the smaller operators? He said that there were quite a few.
Mr D Armstrong:
The Department does not keep a register of those people. We are not required to do so. We can provide the Committee with the names of the bodies that provide CPC training and certification.
The Chairperson:
It is done separately.
Mr D Armstrong:
It is a separate issue.
The Chairperson:
Is the certificate issued separately?
Mr D Armstrong:
A company that carries goods for reward is required by law to have professional competence in the management of its transport operations.
Mr T Clarke:
Is that certificate required regardless of the size of a company’s operation or the size of its fleet?
Mr D Armstrong:
It could be that two or three small companies, with one or two lorries each, will have one person contracted to them to provide that competence. Not every operator has to employ a person with a CPC certificate. That is an important point to make.
The Chairperson:
We will move on to clause 3. There does not seem to be any issues with it. Will you give us an overview on clause 3?
Mr Beggs:
I am not aware of any issues having been raised in relation to clause 2. Are we accepting clause 2, or are we going to go back to it again? Do we formally record —
The Chairperson:
We are scrutinising the clauses today. When the time comes, there will be a formal process in which I will put the question on the clauses.
The Chairperson:
If there are any issues to consider, John, please let us know. Will you give us a brief overview of clause 3?
Mr Brogan:
Clause 3 allows the Department to grant a temporary exemption from the requirement to hold a standard licence, thereby enabling an emergency to be dealt with or a special need to be met. The Department hopes that it will be used only rarely. For example, in GB, the exemption was granted during the last foot-and-mouth disease outbreak. It was also used during a period of drought in Yorkshire in order to enable tankers to bring water to rural areas.
Mr Ford:
Did those powers in GB fall to the commissioner or to the Department?
Mr Brogan:
It would have been exercised by the commissioner.
The Chairperson:
Do members have anything further to add to clause 3? If not, we will move on to clause 4.
Mr Brogan:
Clause 4 deals with vehicles that are authorised or permitted to be used under an operator’s licence. In essence, the licence will authorise the use of any vehicle or trailer in the lawful possession of the licence holder. The Bill differs from the GB Act in clause 4(4), which states that:
“(4) An operator’s licence shall not authorise the use of any vehicle unless—
(a) the place which is for the time being its operating centre is in Northern Ireland; and
(b) the vehicle is registered under the Vehicle Excise and Registration Act 1994 (c. 22).”
That Act deals with the proper registration of vehicles throughout the UK, as it involves the issue of registration plates and the payment of motor tax. It is not included in the GB legislation, although we suspect that they would like to do so, given the chance. Its purpose in the Bill is to overcome the problem that our enforcement teams encounter where a foreign vehicle is registered on a Northern Ireland operator’s licence. Sometimes it is difficult for the enforcement teams to prove who the actual user is when a vehicle is detected committing an offence. However, if the licence only authorises vehicles that are registered under the Vehicle Excise and Registration Act 1994 (VERA), then tracking the vehicle keeper and the actual user will be much easier.
The Chairperson:
Say one of those operator centres was located in Newry or up round Derry — as we know, there are vehicles registered on both sides of the border, and companies have cross-border operations and that is the nature of business as they go where the trade takes them — does that mean that there would be a difficulty, just because a vehicle is registered with Dublin or Donegal plates?
Mr Brogan:
It would.
The Chairperson:
I find that difficult; that could hit people who have a business of that nature.
Mr Brogan:
It is designed to overcome problems that our enforcement teams encounter. If they detect a vehicle that has committed an offence, and if that vehicle is registered elsewhere, it is difficult for them to trace it back to the user or the owner.
The Chairperson:
Surely, if a driver is caught speeding down South, there are arrangements between both authorities to establish the owner or the registered user of the vehicle?
Mr D Armstrong:
The purpose of clause 4(4) is to try to stop vehicles from outside the jurisdiction being used within the jurisdiction, particularly for illegal operations.
The Chairperson:
Nevertheless, the very fact that the vehicle is registered outside the jurisdiction makes it illegal — that is my understanding.
Mr D Armstrong:
Yes; anybody who is on a current licence will have to use vehicles that are registered within the United Kingdom.
Mr Beggs:
It would be useful to give us an example of the problems that you face and the reasons for introducing the change; it would give us a better understanding.
Mr D Armstrong:
It is to do with the detection of vehicles that are committing road-transport and traffic offences that are from outside the jurisdiction, and how that can be carried through to ultimate prosecution. A vehicle that drives outside the jurisdiction is hard to trace and chase. There is much more control if the vehicle is based in Northern Ireland. That does not mean that a vehicle currently registered in the South cannot be taken off an operator’s licence as part of a sanction if that vehicle is misbehaving; that can still be done.
The Chairperson:
Yes. However, I am trying to deal with the practical realities of a situation where businesses have some of their vehicles registered South of the border and some registered in the North.
Mr D Armstrong:
Those vehicles are operating with legitimate licences registered with a company. At the end of the day, this clause does not exist in GB because it does not have land borders with any other country: its vehicles are all registered in GB.
The Chairperson:
Those vehicles are all right. However, we are in a different situation and in a different place. I do not think that clause 4(4)(b) takes account of that reality.
Mr D Armstrong:
Can we look at that and come back to the Committee?
The Chairperson:
You would need to; otherwise further problems will be created down the line.
Mr T Clarke:
Not really, Chairman. We are dealing with Northern Ireland legislation, and surely we should be encouraging operators to pay their licence fees in Northern Ireland.
The Chairperson:
I appreciate that. However, it depends on the situation, and the nature of the place and the operation. I know people whose vehicles are registered in the South but they are based in the North, with a subsidiary operation in the South.
Mr D Armstrong:
I can understand the legitimacy of that proposal in the case of an operator who has employees and vehicles on this side of the border — for example, in Newry or Armagh — and on the other side of the border.
The Chairperson:
We need to examine that matter because it reflects the reality here.
Mr Brogan:
We propose that two minor amendments are made to clause 4, which are to insert the words “if any” at the end of clause 4(5)(b) and after the words “prescribed fee” in clause 4(6).
The Chairperson:
That sounds promising.
Mr T Clarke:
We could insert the words “when we wish” instead.
The Chairperson:
That would take account of the credit crunch. [Laughter.]
Subject to clarity being provided in the cases of operators who have employees and vehicles on both sides of the border, are members content with those two amendments?
Members indicated assent.
Mr Ford:
Clause 4(5), 4(6) and 4(8) all make reference to “the Department”. In GB, do those provisions apply to the traffic commissioner?
Mr Brogan:
Those measures would be exercised by the traffic commissioner.
Clause 5 specifies the maximum number of vehicles and trailers that can be used under the licence. In the road haulage business, the difference between the maximum number of vehicles authorised and the number of vehicles that is specified on the licence is called the margin. Clause 4(3) to 4(6) provide for that margin.
Applicants will be encouraged to apply for more vehicles than they initially need, which will enable them to deal with any day-to-day operational problems without having to apply to the Department to vary their licence. That is linked to the period of grace, which is provided for in the previous section. It will be an offence to exceed the maximum number of vehicles, and the subsequent fine could be up to level 4, which is £2,500.
Mr T Clarke:
If an operator specifies that he has five vehicles when applying for a licence, is a further fee applicable if he wants to add to his fleet at a later date?
Mr Brogan:
That would be an application to vary the licence, which is covered later in the Bill.
Clause 6 provides the Bill’s first mention of operating centres. It defines an operating centre and states that an operator should not use any place as an operating centre that is not specified on the licence. There is further reference to operating centres later in the Bill.
The Chairperson:
You proposed that an operating centre would be defined as the place where the vehicle is normally kept, but that is slightly at variance with the earlier definition — it is perhaps not as expansive.
Mr D Armstrong:
My suggestion was that the definition of operating centre could be amended to mean either the base or centre from which the vehicle operates and/or is normally parked when not in use.
The Chairperson:
That would be subject to us getting some kind of resolution on the planning issues.
Mr D Armstrong:
The Bill could then provide a definition that covers a place from which a person operates and a place where he parks.
The Chairperson:
Clause 6 will therefore be subject to a further amendment, and the planning issue must also be resolved.
We now move to clause 7.
Mr Brogan:
Clauses 7 to 11 set out the application process for licences. This group of clauses provides for the Department to seek certain information from an applicant, and for the requirement for the applicant to publish a notice of the application in the newspapers. It also deals with the process of making an objection to, and representations against, the applications.
Clause 7 deals with the application that is to be made to the Department. A person can hold only one licence at a time in Northern Ireland, and the Department is empowered to prescribe in the regulations all the information that will be needed in the application form. It is fair to say that the regulations will be significant. The information that will be required will include declarations on notifiable convictions and fixed or others penalties, as well as information on financial resources and details on the vehicles to be used and the operating centre. However, this provision is not new. Powers already exist in the Transport Act ( Northern Ireland) 1967 that allow the Department to gather similar information that is necessary for dealing with the current licensing system.
The Chairperson:
Do Members have any issues that they wish to raise in relation to clauses 7 to 11?
Mr Brogan:
I have outlined clause 7 only.
The Chairperson:
Could you give us an overview of all of them, please?
Mr Brogan:
Clause 8 requires the applicant to provide details of any convictions or penalties occurred in the time between making the application and the application being disposed of — in effect, where a decision is made. It will be an offence to fail to meet that requirement with a fine up to level 4, which is £2,500.
Clause 9 requires that the Department will publish a notice of any application for a licence made to it, and the notice should explain how objections or representations may be made. The nature and form of the notice will be described in detail in the regulations provided for under the clause.
Clause 10 sets out how an applicant will have to publish a notice that he or she has applied for an operator’s licence. That will give formal notice to people who own or occupy buildings or land close to the proposed operating centre, so that they will have an opportunity to make representations against the application. The application itself will be refused immediately if the notice is not published, and there will be discretion to accept an application in circumstances where the notice did not comply with the normal requirements but the Department is satisfied that no one’s interests will have been prejudiced as a result. In this case, the notice will have to be placed in a local newspaper that covers the place where the operating centre would be located.
Clause 11 deals with objections and representations. It establishes the right to object or to make representations against an application. The person who may object or make representations will be restricted, as will the grounds on which they are to be made. Objections are different to representations. Clause 11(1), 11(2) and 11(3) deal with the objections, and they will come from certain prescribed trade unions and associations, the police, local councils and Government Departments.
The bodies may object on the grounds that any of the requirements of clause 12 on good repute, financial standing or professional competence are not satisfied, or that the operating centre is unsuitable on environmental grounds. I will explain what is meant by “environmental grounds” when we discuss clause 31.
Clause 11(4) and 11(5) deal with the representations against the issue of operator’s licences. An owner or occupier of land in the vicinity of a proposed operating centre can make a representation against the proposal on the grounds that it would be environmentally unsuitable. Any adverse effects from using the site as an operating centre should be serious enough to affect their use or their enjoyment of the land.
The remaining subsections of clause 11 deal with the process for making rejections and representations, and the time frame and information that is needed.
The Chairperson:
Does any member have an issue with clauses 7 to 11?
Mr Ford:
I noticed that the word “Department” appears in each of the clauses.
The Chairperson:
I propose to conclude our deliberations on the Bill, because we have other issues to deal with. I thank Donald, Gillian and John for their time and for taking us through the Bill. We will come back to that at our next meeting.