Last reviewed 15 April 2019
At the time of writing this article, the actual date that the UK leaves the EU is still somewhat of a mystery for all of us and the consequences of Brexit are causing the UK Government to review many different pieces of legislation in order to make sure that existing UK laws will continue to function after EU exit day. One area of particular concern for enforcement authorities and road transport businesses alike is the control of drivers’ working hours and the tachograph equipment used to record them. Andrew Woolfall of Backhouse Jones solicitors takes a look at the new UK legislation.
The UK Government has begun implementing its strategy for drivers’ hours. This essentially breaks down into two parts.
First, the UK Government is incorporating all existing EU rules on drivers’ hours and tachographs directly into UK law to cover journeys that take place entirely within the UK.
Second, it has reviewed and amended UK legislation to incorporate the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR) to regulate journeys from the UK into Europe or beyond.
However, the most important thing for UK operators and commercial drivers is that, in practical operational terms, in reality, there will be no immediate changes to the actual rules they have to observe. The use of tachograph recording equipment and the rules on drivers’ working time, breaks, etc will remain effectively the same.
Operators engaged on international journeys will start to see new references to existing but often unknown regulations — the AETR. This reflects the fact that on an international level, there are two main areas of legislation regulating the journeys between different states.
The AETR could, in many ways, be considered the primary piece of legislation. It is a United Nations Economic Commission for European (UNECE) agreement and the UK is a signatory to this along with the other 27 EU Member States and a further 21 counties (including Norway, Liechtenstein, Russia and Turkey). The AETR sets out the primary rules for the design and function of tachographs and drivers’ hours restrictions. It covers all journeys taking place between the signatory states.
The second set of regulations are those which we are all familiar with from the EU based around EC Regulation 561/2006 covering tachographs and drivers’ hours. These essentially mirror the AETR obligations and effectively duplicate those same rules for journeys within and across EU Member States.
While the UK has for many years been a signatory to the AETR, UK legislation has always been drafted by primarily referring to the EU rules. However, following Brexit, the EU rules will no longer have any effect as we will not be a Member State and therefore journeys starting, finishing or passing through the UK from that point onwards will have the same effect as they are at the moment for journeys starting, ending or passing through countries such as Russia, Azerbaijan or Turkey.
New UK drivers’ hours and tachograph regulations
If the UK Government did not amend the current existing legislation, there could be real problems with enforcement for issues such as maximum driving times or minimum rest times. This would create an obvious risk to road safety. To this end, the UK Government has therefore, at the start of March 2019, introduced the Drivers’ Hours and Tachographs (Amendment, etc) (EU Exit) Regulations 2019.
Some of the new 2019 provisions came into effect on 26 March and others will come into effect on EU exit day. While as is stated above, and to repeat, there will be no obvious changes in the day-to-day activities to operators or drivers — of either goods or passenger vehicles — with regards to tachographs or drivers’ hours.
However, there will be changes to the legislation under which breaches are prosecuted. New offences are created to reflect the full incorporation of the AETR into UK law while new defences are introduced to align domestic, EU and AETR obligations.
The new 2019 Regulations also “tidy up” previous existing legislation, removing legislation which referred to the UK as an EU Member State or where an obligation was placed on the UK to provide information to the European Commission. Some technical definitions are updated while, additionally, the new legislation transfers a number of functions from the European Commission to the Secretary of State in Great Britain or, as the case may be, the UK and Department for Infrastructure in Northern Ireland. This includes:
the power to authorise exemptions for drivers’ hours for transport operations carried out in exceptional circumstances
procedures for testing tachograph equipment
authorising new tachograph equipment
setting standardised reporting forms.
In relation to the manufacture and supply of equipment, there are new offences introduced relating to the supply, within the UK, tachograph recording equipment which has not been properly approved. However, the new rules also make it clear that EU authorised equipment will be accepted in the UK to make sure imported vehicles can still lawfully operate.
DVSA guidance on the new rules?
The new 2019 Regulations will clearly supplement and add to the previous body of legislation and while the UK Government, post-Brexit, will have the ability to pass further rules with more freedom, it has confirmed that there are no plans — despite what many have wished for — to consolidate all existing legislation concerning drivers’ hours and tachographs into one single act.
Furthermore, the Government has confirmed that there are no plans at the present time to produce specific guidance on the effect of the new rules. It has said that given the fact that there will be no immediate changes for operators, the existing DVSA guidance will not initially be amended. It will be updated at some point in the future to correct references to “EU Drivers’ Hours Rules” and include the “AETR” though no specific date has been given. The current version of the guidance is available on the GOV.UK website.
The new regulations have been designed to ensure minimal to no disruption to operators.
The existing EU rules are incorporated into UK law to cover UK journeys and the obligations under the AETR are now implemented to cover those travelling to or from abroad.
These changes could be the first of many pieces of legislation to come given the potential freedom that Brexit brings. However, just how much scope the Government has to change the law will invariably depend upon how the UK leaves the EU, the terms of any “divorce agreement” and importantly the terms of any trade agreement which may be subsequently negotiated. While theoretically, the Government may have an ability to further change the law, those agreements may restrict them. Only time will tell.
Since this article was prepared, as a result of the fast moving changes in the Brexit landscape coupled with the uncertainty as to when the UK will actually leave the EU, further legislation has now been passed in the form of the Drivers' Hours and Tachographs (Amendment) (EU Exit) (No. 2) Regulations 2019. These bring into effect many of the above changes into Northern Irish legislation plus close some “holes” in the legislation relating to international road transport permits. As for the rest of the UK, the Northern Irish changes will come into effect on exit day while the permit rule changes came into effect on 11 April 2019.