Regulators of any function – be it regulating the road transport industry, medicines, the protection of animals or even water – must regulate for the protection of the vulnerable and with consideration for environmental or social impacts, as well as any other objectives. They must also, however, regulate with consideration for the Regulators’ Code as set out by parliament.
The Traffic Commissioners (TCs) and the DVSA are bound by legislation to ensure that they regulate their industries in accordance with that Code.
The framework set out in the Regulators’ Code is based upon six principles. These principles insist that regulators should: carry out their activities in a way that supports those they regulate to comply and grow; provide simple and straightforward ways to engage with those they regulate and hear their views; base their regulatory activities on risk; share information about compliance and risk; ensure clear information, guidance and advice is available to help those they regulate meet their responsibilities and comply; and ensure that their approach to their regulatory activities is transparent.
In order to implement these principles, there are a number of obligations set out in the Code. Of particular interest are those which require: that regulators ensure that their officers have the necessary knowledge and skills to support those they regulate, including having an understanding of those they regulate that enables them to choose proportionate and effective approaches; and that regulators should ensure that their officers understand the statutory principles of good regulation and the Code and how the regulator delivers its activities in accordance.
The Code places obligations upon the regulators to have mechanisms in place to engage those they regulate to offer views and contribute to the development of their policies and standards. Before changing policies, practices or service standards, regulators should consider the impact on business and engage with business representatives.
Many changes of policy adopted by the DVSA and TCs are introduced with little industry awareness of the implications and expectations that those new policies create. Though there are publications such as ‘Moving on’ and some consultation with trade associations, it is apparent, from many of the reported hearings and sanctions faced by the transport industry, that the expectation of the regulators is not reaching the majority of the grass roots of the industry for a considerable time after introduction. In practice this communication to the grass roots should precede their introduction.
Regulators should review the effectiveness of their chosen regulatory activities in delivering the desired outcomes and make necessary adjustments. In practice, wider consultation with the grass roots is limited and the methods adopted for such communication really should be reviewed and addressed. Given that most operators are rapidly moving on to the e-licensing system for vehicle O-licences, it is suggested that feedback on new policy ideas and proposals could be worked through this interface rather than relying on ‘.gov’ website consultation notices and trade associations, valuable though these are.
Most importantly, the Code requires that regulators provide advice and guidance that is focused on assisting those they regulate to understand and meet their responsibilities. This is one of the more obvious weaknesses of the current regulators. The only TC guidance to which the industry can turn is the ‘Statutory directions and guidance’ published by the senior TC. This material, though very useful from a legal perspective, is more focused by law on the TCs and their staff. It is technical and legalistic – which is appropriate for its statutory function, but could hardly be described as clear, straightforward guidance.
Instead, the TCs and the DVSA would be better served by circulating material more akin to the excellently produced and updated ‘Guide to maintaining roadworthiness’. This document can be relied upon by operators as clear and direct advice as to how to remain compliant as regards maintenance.
Currently, there is no practical advice in respect of the expected arrangements for drivers’ hours rules and record-keeping obligations, prevention of overloading of vehicles and speeding, etc.
Lastly, the Code dictates that regulators should have mechanisms in place to ensure that their officers act in accordance with their published service standards, including their enforcement policy. Despite this, very often vehicle examiners and DVSA officers will differ in their opinions and ultimately prove to be inconsistent in how they grade operators using documents such as the PG13F&G maintenance inspection report, the traffic examiner operator report or remote enforcement. What one officer may consider “satisfactory” another might consider “mostly satisfactory” or even “unsatisfactory,” despite little or no difference in the circumstances. Furthermore, it is not clear that these documents are themselves the subject of industry consultation.
The regulator is obliged, pursuant to the Code, to ensure that their officers understand the principles and the Code. In practice, it is very rare to find a DVSA traffic examiner or vehicle examiner who has an awareness of the Code, let alone understands the principles it requires them to work to.
The Code is a clear, short list of accessible and easily comprehensible principles and obligations imposed on regulators. However, though many of the approaches adopted by the DVSA and the TCs are in line with the requirements of the Code, in practice the Code has no teeth. Often, its very important principles, designed to promote the industry and achieve a proportionate level of regulatory control, are simply invisible on the ground.
James Backhouse, partner, Backhouse Jones
