Last reviewed 1 September 2016
In this feature, Richard Smith looks at some aspects of road haulage that have been identified in the table in the Operator Licences topic and considers how they might be affected.
EU laws are automatically incorporated in the UK by primary legislation contained in s.2(1) of the European Communities Act 1972 (ECA 72). This Act also makes provision, at s.2(2), for secondary legislation to be made where necessary, for example through a Statutory Instrument (SI). Where the EU legislation is in the form of a regulation, which is automatically binding on Member States, s.2(1) of ECA 72 is sufficient but where it comes as a directive, which requires separate national legislation, then this has usually been done by an SI under s.2(2). There are also some SIs implementing certain aspects of EU regulations where there are permitted national variations.
At the present time, therefore, EU regulations are effectively UK law, even though they may have some elements controlled by national secondary legislation. In order to regain the primacy of the UK Parliament, it will at least be necessary to repeal s.2(1) and this would create an interesting situation where there may turn out to be no laws governing certain activities in the UK. It is to be expected that such a situation would not be allowed to arise and this could be avoided by passing new primary legislation replacing s.2(1) with something that, for example, retains all EU regulations prior to a specified date. Leaving s.2(2) in force would retain all the SIs.
It must be stressed that nothing in this feature represents any legal or constitutional opinion: it is a viewpoint based on the UK’s existing legislative framework.
The Driver Certificate of Professional Competence (Driver CPC) was introduced by EU Directive 2003/59/EC and implemented in the UK by the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 (SI 2007 No. 605), as amended. As the entire system is adequately covered by the SI, retaining that in force would keep the Driver CPC exactly as it is at present.
The EU requirement for a Driver CPC applies only to nationals of Member States and other nationals employed by an undertaking established in a Member State. So if the UK leaves the EU, UK nationals and anyone other than an EU national employed by a UK haulier can continue to drive in the EU without a Driver CPC. (See www.gov.uk — Driver C is a Turkish non-EU driver who does not need a Driver CPC to drive in the EU.)
Therefore, as suggested in the Brexit sheet, if the UK Government were to decide to unpick this legislation, this alone would have no impact on the ability of UK businesses to conduct international transport operations. The idea of continuing development for professional drivers is laudable from a road safety point of view and seems intuitively to be right. However, there is certainly a significant financial cost and it must be seen that there is some measurable benefit to justify that cost. Now that the industry has had one complete cycle of periodic training, we have at least some evidence of whether the aims are being achieved. The stated aims are to:
ensure the driver is of a suitable standard
improve road safety and the safety of the driver
contribute to the recruitment of new drivers at a time of shortage.
The direct costs to undertakings and individuals include the cost of training and accreditation, and a reduction in driver availability at certain times. It would take a detailed study to find out whether Driver CPC training has resulted in a net increase in profitability but, anecdotally at least, it does not seem to have gone very far towards solving the driver shortage.
In terms of road safety, there was a steady fall in the number of reported accidents involving HGVs between 2010 and 2013 but the number rose again in 2014. There could of course be any number of reasons for this, including the reduction in numbers of HGVs, and a great number of accidents involving HGVs are not the fault of the HGV driver.
Aside from justifying the costs, it is perhaps unlikely that the Driver CPC will be an early priority for consideration by the Government and can therefore expect the current requirement to continue for the immediate future for all operations.
Operating vehicles in Europe
Operator licensing is adequately covered in UK legislation by the Goods Vehicles (Licensing of Operators) Act 1995 (as amended) and will not require any legislative action to be retained after leaving the EU (after all, we have had a system of domestic operator licensing since 1930, long before the EU was created). The problem would appear to be that while the situation inside the UK would not change, there would be no facility for unlimited operation of goods vehicles in EU countries.
Vehicles registered in one country (irrespective of any load) always require permission to enter another country and there are two ways in which this permission is currently provided in greater Europe.
Community Licences — First, in the EU and some countries with a special relationship with the EU, blanket permission is implicit in the issue of the Community Licence, one copy of which is provided automatically for every vehicle listed on an international operators’ licence, under the provisions of EU Regulation 1072/2009. While currently available to UK operators with an international licence, Community Licences can only be issued by an EU Member State so they will therefore no longer be available after leaving the EU.
ITF permits — Second, a partial solution to the loss of the Community Licence may be available in the permits already issued by the International Transport Forum (ITF), which includes all EU States and many others. ITF permits are not currently needed by vehicles from EU States operating only within the EU, when the Community Licence applies, but UK operators going further afield outside the EU do already have to have them. Since all EU States are members of the ITF, an ITF permit could effectively replace the Community Licence on somewhat similar terms for UK operators after Brexit. However, a fixed quota of ITF permits is available to each country every year and while a permit is not journey or vehicle-specific (so may be swapped between vehicles, unlike a Community Licence), a single permit will still only allow one vehicle at a time to travel to and through the member countries. The UK total allocation of permits for 2016 is 240, divided into 60 for Euro IV vehicles, 120 for Euro V and 60 for Euro VI, with a further 60 in reserve. Therefore, (ignoring reserves) only a maximum of 240 different vehicles may be using a permit at any one time and they must conform to the split of engine types.
A further complication might be that while an ITF permit does allow a vehicle to make three loaded journeys after an initial unloading, this is restricted to journeys through and between any member countries other than the one of registration and therefore excludes cabotage journeys. To use the ITF permit as a substitute for the Community Licence, the UK would certainly need to negotiate a huge increase in permits available and still not get cabotage rights.
Whether the EU will revive a requirement for carnets de passage en douane (CPD) and carnets de passage en douane pour l’admission temporaire (ATA) is not known but since these are controlled and issued outside the EU jurisdiction, it would not present a problem.
This has looked at only two issues connected with leaving the EU and while the Driver CPC and the subject of operator licensing are not areas to be concerned about and require no legislative action by the UK Government, a solution will have to be found to permit unlimited free movement of goods vehicles throughout the EU from the UK.
Although this is technically a separate issue to the one of trade (which is essentially about the goods on the back of the vehicles, not the vehicles themselves), it is likely to be part of the same discussions that have yet to start.