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‘Because it’s the Law! ….

18 April

Er….unless it is disproportionate?

Albert Einstein’s theory of special relativity produced the equation E=MC2 to describe a fundamental law of physics. One effect of this law is that if you wanted to travel at the speed of light you need infinite energy, or to put it another way it is impossible for us to travel at the speed of light.  However much we might want to travel so quickly the law is absolute and there is no negotiating with it.  There is no role for a lawyer to argue the meaning of it or claim an exemption from it; it is a fundamental law of physics and it is unchangeable.

UK laws, unlike the laws of physics, are not fixed for all time; they are created by humans and are capable of being interpreted and applied differently to different situations and over time.  Indeed, if we really do not think the law fits we can change or repeal it.

This flexibility in applying the regulations is a vital part of the system which simply could not operate in an overly prescriptive system of regulations when the commercial world in which the vehicles are used is so varied and changing.

The Transport industries through the trade associations, the DFT/DVSA and The Traffic Commissioners are constantly exploring the notion of how to apply the UK regulations in to balance achieving the objectives of the regulations against the need to actually allow operation of vehicles by all too fallible humans.

The regulation of the transport industries sometimes needs the conscience of Captain Kirk, not just the pure logic of Spock. Operators that are answering to logical but in their situation overly harsh regulatory obligations often ask who makes the rules and furthermore who regulates the regulators?

The short answer is the regulators are subject to a Regulator’s Code that was introduced – regrettably without much fanfare in the transport industry – by the previous coalition government, and the latest revision was issued in 2014. The purpose was to introduce a package of measures to improve regulation delivered on the front line.  The overriding intent was to reduce regulatory burdens and support compliant business growth through the development of an open and constructive relationship between regulators and those they regulate.  The Regulator’s Code provides a flexible, framework for regulatory delivery that should enable regulators to design their service in a manner that best suits the needs of businesses.  The Regulator’s Code confirms the primary purpose is to regulate for the protection of the vulnerable, the environment, social or other objectives, but the code should promote proportionate regulatory activity.

It is worthwhile for transport operators interested in their compliance to read the code.  It is written in plain English, just seven pages long and is a super introduction to interaction with the industry’s regulators.  The opening of the Code is encouraging for operators as its first aim states “regulators should carry out their activities in a way that supports those they regulate to comply and grow”.

As a jobbing lawyer who undertakes numerous Public Inquiries it is fair to say that not every client we act for shares this view of the system. So what is the government’s view as set out in the Code?

The government has specifically required that regulators should avoid imposing unnecessary regulatory burdens and should assess whether outcomes could be achieved by less burdensome means.  Regulators should choose proportionate (there is that all important word again) approaches to those they regulate based on relevant factors including, for example, (which is not widely publicised), business size and capacity.

The code states that when designing practices regulators should consider how they might support or enable economic growth for compliant businesses by considering how best regulators themselves can:-

  • Understand and minimise negative economic impacts of regulatory activities
  • Minimise the costs of compliance for those they regulate
  • Improve confidence in compliance for those they regulate by providing greater certainty
  • Encourage and promote compliance

Frustrated operators might suggest the simplicity of the code should be read against a backdrop of confusing regulations overseeing four concurrent sets of rules governing just the hours a commercial driver has to work within.   Drivers have to comply with:

  • The GB domestic rules
  • EU tachograph rules
  • Working Time Regulations for mobile workers except non-occasional EU drivers
  • Working Time Regulations for non-occasional EU drivers

For some drivers all four sets of rules apply at times to their job. It is perfectly reasonable for the industry to ask who (in the application of these complex rules of operation) decides what is proportionate and what is complex, burdensome and a mere drain on business and the wider economy?

Some operators might even allow the question of regulation to influence their individual decision to remain or leave the EU. As they decide operators might ask who currently sets the agenda and how regulators are “managed” to mitigate the risk of overly zealous regulatory control.  Whilst the question is reasonable and simple the answer is, perhaps inevitably, more complex.

The starting point is that both the Traffic Commissioners (TC’s) and DVSA derive their powers from legislation and the Secretary of State for Transport (DfT).  The DVSA is an agency of the DfT and the TC is an appointment by the Secretary of State.  Accordingly the agendas for both regulators are ultimately the responsibility of the DfT.

The DVSA is for the most part, self-governing and individual officers are responsible for their own decisions but must answer to their superiors as any employee might.  The Traffic Commissioners are similarly answerable to the Secretary of State.

If an operator is concerned by an approach adopted by the DVSA there is a complaints route within the DVSA itself or a legal route by a procedure called Judicial Review.  Judicial Review usually involves lawyers and is therefore invariably expensive and not designed for trivial issues.   It is of little use to an operator aggrieved at the issue of a prohibition at the roadside however unreasonable that prohibition might be in all the circumstances.  Alas the internal and non-impartial complaints route is not particularly quick or consistent.

The absence of a practical or consistent remedy for aggrieved operators is frustrating for disheartened operators and is often the prelude to a breakdown in the vital working relationship between operator and the DVSA.

Some regulatory procedures have clear and independent routs of appeal however.  If the DVSA impound a vehicle there is a right of appeal to the Traffic Commissioner; this is a straightforward right to challenge the DVSA position.  But other operational DVSA decisions have no similar route and this is surely against the spirit of the straightforward way the Regulator’s Code envisaged industry having the right to engage with regulators.  The code stipulates that regulators should have mechanisms in place to engage those they regulate and in responding to non-compliance regulators should clearly explain what the non-compliant activity is and if advice is proffered the reason for it.  The code states that regulators should provide an impartial route to appeal against a regulatory decision.  The route to appeal should be publicised to those who are regulated.  Regulators should also deploy a range of mechanisms to enable and regularly take on board customer feedback, including for example, through customer satisfaction surveys.  Disgruntled operators might ask, at the roadside, for a customer satisfaction survey or the name and address of the line manager of the official providing the regulation.
The code provides that regulators should create an environment in which those they regulate have confidence in the advice they receive and feel able to seek advice without fear of triggering enforcement action.   Do note this is existing government policy.

The government require regulators to publish on a regular basis details of their performance against their service standards including feedback received from those they regulate such as customer satisfaction surveys and data relating to complaints about them and appeals against their decisions.  Accordingly operators should not simply moan to the lawyers here at Backhouse Jones, although we are always a shoulder to lean on, but should register their complaints in accordance with the Regulator’s Code written by the government.

Operators can be forgiven for thinking that the Traffic Commissioners power is absolute and final.  Here though the operator does have a clearer route to appeal.

If an operator is not satisfied with the decision of an individual Traffic Commissioner then that operator can normally appeal as of right to the Administrative Chamber of the Upper Tribunal –  basically for all intents and purposes an appeal court.  These appeals are not overly expensive to undertake, especially for those who had the foresight to join our BACK Up subscription scheme and thereby benefit from discounted rates even in the appeal courts.   The appeal process allows the operator to set out their dissatisfaction with the Traffic Commissioner’s decisions.  Infrequently these hearings can become complex and prohibitively expensive but this is unusual, the tribunal itself are very familiar with the process and procedures and are able to very quickly focus on the heart of the issue that is the subject of the appeal.

Furthermore, if the operator is dissatisfied with this decision of the Upper Tribunal, the operator can appeal to the Court of Appeal if there is a suggestion that the law has been wrongly applied.

Alas however, there is no quick appeal route against, administrative problems such as a protracted application for an operator’s licence.  There is no practical route to hold Offic of the Traffic Commissioner to account.  Judicial Review is an option but that is an expensive sledgehammer to crack a nut and not in practice a reasonable option.  Surely this contravenes the Regulator’s Code and its noble aims of reducing regulation in accordance with the red tape challenge of the previous coalition government.  A disgruntled operator has to fall back on mere internal complaint procedures and runs the risk of being seen as a mere nuisance by the regulator’s own staff if not by the TC him/herself.

A further area of concern against the Regulators Code is that the code required regulators to issue clear guidance on the areas of operation which they are responsible for regulating. This guidance is required to be clear distinguish between best practice and legal requirements and available to the sector that they regulate.

In practice the picture for the TC and the DVSA is mixed. There are some good examples of guidance; the longstanding Guide to Maintaining Roadworthiness being a strong contender, also the Categorisation of Defects gives detailed directions which operators as well as Vehicle Examiners can refer to. On the other hand, there are some huge holes in the guidance.  There is no guidance at all currently as to how operators should meet the requirement to ensure that they regularly check their driver’s hours records from compliance.  This has long been the case with very little guidance ever having been issued over the last 30 years.

This is surprising since the failure of operators to comply with this obligation has been a regular feature of many Public Inquiries and prosecutions over that same time frame.

In summary, the Regulator’s Code of Practice specifically requires regulators (in their day to day operation) to interact with operators in a proportionate way and not to regulate more aggressively than is necessary to achieve the desired and realistic regulatory outcome.   Regulators under the code are supposed to regulate in a way that specifically encourages businesses to grow and prosper.  They are supposed also to issue guidance to operators to make the route to compliant operation well signposted. There is a need to ensure compliance but it should not be deployed in an overbearing way.

At the risk of an architectural and linguistic mixing of metaphors regulators sitting in ivory towers within glass houses should not throw stones.  There is no clear explanation why the Regulator’s Code has not been articulated to the transport industry.  Surely there is a contradiction where the regulators of the industry are not wholly compliant with their own Regulator’s Code?   The transport industry, through its trade bodies’ interaction with the DfT, should identify shortcomings with the regulators adherence to the code and should refer the DfT to the Regulator’s Code and its specific requirements.

Ultimately regulators need and want the support of the industries that the regulate and the best means of the industry influencing the regulator is to engage and present clear indications of concern, if necessary through the trade associations.
Its hard to believe now but BACK when the first episode of Star Trek was shown in 1966 science fiction was regarded as a commercially dubious genre. Executives were particularly concerned by viewers negative response to the alien with pointy ears : Spock.

But when President Obama met Leonard Nimoy – who played Spock – he greeted him with the Vulcan hand salute. It demonstrates how profoundly Spock has infiltrated popular culture. The TC’s have also moved from being retired Brigadiers overseeing the transport industry into proactive regulators whom it could be said have infiltrated the industry on a wider level to raise compliance standards.  Spock advised Captain Kirk but ultimately respected his position of leadership. The Regulators code might be similarly interpreted.

 

For more information, please contact James Backhouse.

T: 01254 828 300

E: james.backhouse@backhouses.co.uk

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