Last reviewed 21 February 2017
Under s.4C(1) of the Public Passenger Vehicles Act 1981, the Senior Traffic Commissioner for Great Britain is empowered to issue guidance and directions explaining how he or she believes that Traffic Commissioners should interpret the law relating to the application of the statutory documents. This guidance may be subject to decisions of the higher courts and to subsequent legislation. In this article, Paul Clarke explains the role of statutory documents in guiding the behaviour of transport operators and explains the changes that were introduced by Beverley Bell with effect from 1 January 2017.
These 15 documents explain the legal basis of how Traffic Commissioners approach the exercise of their statutory functions. They cover the following.
0. Introduction to using statutory guidance and statutory directions*.
1. Good repute and fitness*.
3. Transport Managers*.
4. Operating centres, stable establishments and addresses for service*.
5. Legal entities*.
6. Vocational driver conduct.
8. Delegation of authority.
9. Case management*.
10. The principles of decision-making and the concept of proportionality*.
11. The format of decisions.
13. Small public service vehicle operations.
14. Local bus services in England (outside London) and Wales.
The nine documents marked with an asterisk in the above list were replaced with revised versions on 1 January 2017. They can all be found at www.gov.uk as can the remaining six statutory documents. Most of the amendments relate to updated legal references (following Upper Tribunal appeal cases). The documents are intended to provide greater transparency to the way in which Traffic Commissioners approach their judicial duties and the licensing and other work conducted outside the tribunal room. They also set the framework for instructions to members of staff acting in support of the Commissioners. While they are written in a fairly “legalistic” style, they contain useful information that is well worth reading. With regard to the latest updates, the Senior Traffic Commissioner, Mrs Bell, has advised operators and licence applicants to pay particular attention to the following changes.
Statutory document 3: Transport managers
Where a Traffic Commissioner finds that a transport manager has failed to live up to the standards expected, the correct approach is to consider making a finding in respect of that manager’s repute. It is not open to a Traffic Commissioner to find loss of professional competence unless there is a finding that the transport manager has never been professionally competent or that there has been a previous declaration that he or she was unfit by reason of a loss of good repute and has already had his or her certificate of professional competence suspended.
The significant change in this latest update relates to hearings where a Traffic Commissioner finds that a transport manager has failed to live up to the standards expected.
The document has been revised to clarify the findings the Commissioners can make with regard to professional competence. It states: “There will be instances when it will be open to Traffic Commissioners to make a finding that a purported transport manager does not in fact hold a valid certificate of professional competence. Examples might include where it was forged, the holder was not entitled to the certificate in some other way, or that it has been suspended as a result of a finding of loss of good repute elsewhere.”
The document (paragraph 62) also offers further detail around the requirements for requesting a period of grace as provided for by EU Regulation 1071/2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator. At the moment, the Traffic Commissioner may allow a period of up to six months (which might be extended by a further three months in the event of the death or physical incapacity of the transport manager) to find a replacement to fill the role. The latest revision notes that the Upper Tribunal has indicated that there should be “tangible evidence” that a period of grace will be worthwhile; in other words, there must be reasonable prospects that the mandatory requirement will be met before expiry of the specified period to be allowed. It will then be left to the Traffic Commissioner to decide how long to allow within the maximum periods permitted by the legislation.
Statutory document 7: Impounding
This document concerns how Traffic Commissioners should interpret the law in relation to the return of seized vehicles. Any laden heavy goods vehicle (HGV) operating on a public road for the carriage of goods (either for hire or reward or in connection with any trade or business) without the authority of a goods vehicle operator’s licence can be detained by the police or more usually the Driver and Vehicle Standards Agency (DVSA).
The owner of a detained vehicle may within a specified period apply, to the Traffic Commissioner for the area in which the vehicle was detained, for the return of the vehicle.
Given that one of the exemptions to the rules set out in this section is the use of a vehicle for international carriage by a haulier established in another Member State, document 7 has been revised to clarify the evidence that hauliers need to produce for such cabotage operations in order to conform with EU Regulation 1071/2009. In short, an incoming vehicle, after discharging its international load, is allowed to undertake three further collections and deliveries within Great Britain before leaving the country, which it must do within seven days. It is now specified that hauliers must be able to produce clear evidence of the incoming international carriage and each of the consecutive cabotage operations. That evidence must be kept in the vehicle and made available for inspection at any roadside check.
Guidance is also updated on steps that should be taken to prevent the future illegal use of a vehicle. A non-exhaustive list of the documentary evidence which may be used by an owner can be found at paragraph 59. This includes:
the scheduling in the case which had resulted in the impounding
the investigations undertaken by the management of an owner/operator as to what went wrong
the disciplining, retraining or dismissal of staff who were responsible for scheduling a vehicle which resulted in the commission of a criminal offence in Great Britain
the instructions and procedures which were in place to ensure that the driver of a vehicle undertaking cabotage had with him or her the necessary documents for inspection during roadside checks.
Statutory document 9: Case management
This document has been revised to reflect the Welsh Language Act 1993 and Welsh Language (Measure) 2011 requirements in the administration of justice. It confirms what the Office of the Traffic Commissioner is required to do when dealing with operators who use the Welsh language and how much notice operators are expected to give that that language will be used in proceedings (if possible within 21 days, and no later than 14 days, prior to the hearing date).
Where not all of the “individual parties” are resident in Wales, the Traffic Commissioner will decide whether the case should be classified as a Welsh case. In such a case, the Welsh language may be used by any party or witnesses or in any document placed before the Traffic Commissioner or at any hearing.
The remaining documents from this suite of guidance that were also updated in January 2017 did not contain significant changes.