§ (2) In paragraph 2 after "shall" there is inserted "except in exceptional circumstances".
§ (3) After paragraph 2(b) there is inserted—
- "(c) has within the last two years employed one or more drivers that he knew or suspected were illegally claiming unemployment benefits; or
- (d) has within the last two years employed one or more drivers that were illegally claiming unemployment benefits and has failed to take suitable measures to ascertain whether or not they were claiming benefits or to remit national insurance deductions to the Contributions Agency."").
§ The noble Earl said: In moving Amendment No. 382A I shall speak also to Amendment Nos. 389A, 387 and 388. These amendments deal with closely related issues. The Goods Vehicles (Licensing of Operators) Act provides for two types of licence to operate goods vehicles: standard and restricted. A restricted licence prevents use for hire and reward. In order to be granted a standard licence an applicant has to be of good repute, professionally competent and have the appropriate financial standing. An applicant for a restricted licence need fill none of these requirements.507
§ My original amendments removed the distinction between the two types of licence. Therefore an applicant would need to meet all the conditions. However, I was tactfully briefed against this.
§ Amendment No. 387 inserts the requirement for the applicant of a restricted licence to be professionally competent. In other words, he needs to have a properly qualified transport manager.
§ It is probably worth remembering that even operators of rubbish skip lorries normally require only a restricted licence. There will be some obvious difficulties that the Minister will draw to the Committee's attention. He will refer no doubt to the small operators who have only one or two vehicles. I think that the concept of the amendment could be developed so that a suitable trade association could provide the top cover of a transport manager. Therefore it would not be necessary for a small organisation to have a fully qualified transport manager. They would just have to have access to that knowledge. The trade association could send bulletins to people subscribing to their services.
§ Amendment No. 388 inserts a requirement for all operators of goods vehicles to be of good repute. I cannot understand why the Minister would be happy for anyone who is not of good repute to operate a goods vehicle.
§ Amendments Nos. 382A and 389A provide that a goods vehicle operator must lose his good repute if he knowingly employs drivers illegally claiming benefits. At practically every multi-agency check of goods vehicles, employed and self-employed drivers are detected illegally claiming benefits. It is despicable for an employer to do that. It cannot be done accidentally and therefore the operator's good repute should be forfeited.
§ It sometimes seems to me to be unduly difficult for an operator to lose his good repute. This amendment deals with only one particular scam. There are many more. I believe in minimum regulation for those who will operate legally within the industry, and removal for those who will not. I beg to move.
§ Lord Bradshaw
I support what the noble Earl, Lord Attlee, said. He referred to the fact that many scams are detected, for example, at multi-agency checks. This is just one that I have witnessed. It is not an occasional offence. It is a regular offence, as is using a vehicle which is running on red diesel. I recently saw a vehicle which had two filler caps in the diesel tank: one on the outside which contained white diesel; the majority of the tank contained red diesel which was filled from another cap. Anybody found doing that should be barred from the industry. I support the amendment regarding the claiming of unemployment benefit. It is obviously done with the knowledge of the owner and operator of the vehicle.
The Committee will be pleased to know that I shall not support every one of the amendments of noble Earl, Lord Attlee. However, when this Bill started in another place there were no 508 substantive clauses on road transport. It is due to his perseverance that we have tabled a good raft of amendments tonight, which, taken in total, would make enormous improvements in the legal operations and safety of the road freight industry. I recognise that this was part of the Government's policy. The recommendation in the Commission for Integrated Transport Report was 44 tons as an essential prerequisite. I shall return to that in Amendment No. 412. With his wide-ranging knowledge, the noble Earl has done the House a great service in putting down such an excellent range of amendments.
§ Lord Bradshaw
Perhaps I may speak also to Amendment No. 386, which is in this group of amendments, although it does not reflect exactly the same issues as in the amendment moved by the noble Earl, Lord Attlee. That amendment concerns undertakings given by operators to traffic commissioners, but not the original undertakings which they give as a condition of their original licence, where a traffic commissioner may grant a licence and may attach a condition. I refer to undertakings which are given to a traffic commissioner at a hearing in the traffic commissioner's court where an operator has been called in to the court to see the traffic commissioner usually because the maintenance arrangements of his vehicles are not up to standard.
That operator may give a verbal or a written undertaking at that time to the effect that he is, for example, employing a proper maintenance foreman, will keep proper records and will do various things to ensure that the failings in the maintenance of his vehicles are rectified. Unfortunately, as I understand the Goods Vehicles (Licensing of Operators) Act 1995, undertakings given subsequent to the granting of the licence are not regarded as part of the licence, and therefore if that failing is repeated the licence is not automatically at risk.
That is a weakness in the law. It was referred to in the Standing Committee in another place and there was an exchange between my honourable friend Mr Foster, and the Minister, Mr Hill. No conclusion was reached, although Mr Foster was complimented for raising the point, which the Minister said interested him greatly.
This is an important point and it affects the whole safety of road haulage. Can the Government now tell us whether they are able to amend the regulations? When an operator who is called in at a disciplinary hearing gives an undertaking—and he is giving that undertaking voluntarily as a result of being found wanting—can we then be sure that that will be recorded in such a way that should the same failing occur again the licence of that operator is automatically at risk? I am sure that that would be the case both in railway and air travel and I believe that it ought to extend to road travel, where far more people are killed and injured.
§ 8.30 p.m.
§ Lord Whitty
I join my noble friend Lord Berkeley in commending the noble Earl on his activity in this 509 regard and for the amendments which have appeared in another place. We are focusing on transport tonight and I want to put on record my gratitude to the road haulage industry. This morning, in my noble friend's absence I chaired a meeting before the Select Committee. We had a constructive discussion with the trade associations and trade unions on issues such as enforcement. Many of the issues are being faced in that context probably for the first time.
As regards the noble Earl's amendment and the issue of deciding whether an applicant is of good repute, at present the commissioners must take into account the criminal convictions of the operator and his employees, including road transport offences, and any previous conduct in relation to the operation of vehicles as part of a business. Once a licence has been granted the operator must continue to satisfy the good repute requirement throughout the time he holds the licence. Operators can face the suspension or revocation of their licence by the traffic commissioner if they do not.
The legislation is particularly firm where an individual has been convicted of road transport offences or more than one serious offence. In such circumstances, the commissioner must revoke the operator's licence. The first part of the proposed amendment would allow the traffic commissioner to waive this requirement in "exceptional circumstances". That is not an appropriate form of words. Indeed, the existing provisions of the regulations implement the requirements of an EC directive which provides no derogation that would allow us to give the transport commissioner powers to waive the requirement for more than one serious offence. Therefore, the amendments would result in a breach of the UK's Community obligations. In any event, we believe that the situation covered by the amendment is already tight enough within the existing provisions. If anything, his amendment would dilute them.
In other respects, the existing discretionary powers of the traffic commissioner concerning good repute are already wide-ranging. The commissioner may take into account "all the relevant evidence" concerning the conduct of the holder of an operator's licence of any of his employees.
To determine effectively whether an operator is of good repute, the traffic commissioner must have powers to take into account any evidence of misconduct that to him appears relevant. The existing legislation does that already. It enables him, for example, to consider offences such as benefit fraud, to which the noble Earl and the noble Lord, Lord Bradshaw, referred. In view of that, I believe that Amendments Nos. 382A and 389A are unnecessary because sufficient powers already exist.
Amendments Nos. 387 and 388 relate to the position of restricted licences. I believe that the UK is the only country in the EU which has a system of restricted licence for own-account hauliers. Other member states do not licence them in this way. The requirements for own-account operators in the UK are therefore 510 already more stringent than anywhere else in Europe. We have no evidence that the restricted licence holders are any less professional or run their vehicles in a less safe manner. Making it mandatory, for example, for restricted licence holders to hold a certificate of professional competence, or to employ a transport manager with that qualification, would present a significant burden on the high proportion of restricted licence holders that are small businesses.
Restricted licence holders must already prove to a traffic commissioner that they are fit to hold a licence and can run their vehicles safely and within the law. I am therefore not convinced that there is a sufficient case for seeking those changes.
I understand what lies behind the amendment tabled by the noble Lord, Lord Bradshaw. He is concerned that any undertakings should be taken into account by a traffic commissioner when he considers that they are material to the granting of a licence. Undertakings which are given on occasions that cannot be recorded on the licence therefore present a problem. If undertakings which are recorded on a licence are breached, the traffic commissioner may take disciplinary action. That gives the traffic commissioner wide powers.
The amendment is designed to take action if any undertakings, wherever they are given by the operator, are breached. Unfortunately, I do not believe that his amendment does that. It still refers to undertakings being recorded on the licence and does not appear to allow for the recording on the licence of any undertakings given subsequent to the granting of the original application, even, for example, at a disciplinary inquiry. There is a need for clarity concerning the status of undertakings given by and agreed with the licence holder, otherwise there would be frequent disputes as to whether something which had been said or written amounted to a formal undertaking. The status of the present regulations, and his amendment, would not relate to undertakings outside those which could be recorded, but the legislation more broadly requires the traffic commissioner to take note of the undertakings. Because they are not recorded on the licence there is not the same degree of automaticity as there will be for those recorded at the point of granting the licence. Nevertheless, I believe that existing legislation and regulation already covers that point.
§ Lord Bradshaw
I thank the Minister for that reply but I do not find it satisfactory. There is clear evidence of disputes as to whether undertakings given subsequent to the granting of a licence are on the record in such a way that they can properly be taken into account. There is disputation.
I readily accept that my wording may not be of the best, but I do not believe that it is impossible between now and another stage for someone to see whether the words can be altered to make a small but necessary amendment in the interests of road safety and clarity. The enforcement authorities and the hauliers will then clearly understand where they are. We must do away with the artificial distinction between undertakings 511 given at the time of granting the licence and subsequent undertakings given, for example, following an inspection of maintenance facilities.
§ Earl Attlee
I am grateful to all Members of the Committee who spoke to the amendments. The noble Lord, Lord Bradshaw, mentioned red diesel and special modifications to the tank. That is a another good example of the possible automatic loss of good repute. The Customs and Excise detector vehicles have a specially modified fuel system and they normally impound straightaway.
The noble Lord, Lord Bradshaw, spoke of undertakings. The point he was making was that they are made voluntarily in order to retain the licence because it appeared to the operator as though the traffic commissioner was about to withdraw it.
I thank the noble Lord, Lord Berkeley, for his kind words. We shall wait and see how we get on with his Amendment No. 412.
I thank the Minister for his reply, but the principle we are debating is the automatic loss of good repute. I am suggesting that we should be tougher than the system which obtains in the rest of Europe. I am a little disappointed in that the Minister did not pick up any of the suggestions. I shall read his reply carefully and I am sure that we shall return to the matter at a later stage. In the mean time, I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 383 had been withdrawn from the Marshalled List.]
§ [Amendment No. 384 not moved.]
§ Lord Bradshaw moved Amendment No. 385:
Alter Clause 255, insert the following new clause—