Consultation outcome

Removing sunset clauses and provisions for EU Exit and COVID-19 pandemic from existing traffic management legislation: government response

Updated 9 August 2021

Introduction

From 26 May to 20 June 2021, we sought the views of stakeholders and members of the public on the proposed updating and amendments of the statutory instruments (SIs) that underpin Operation Brock.

Operation Brock is one of the Kent Resilience Forum’s (KRF) traffic management response plans for periods of severe and protracted disruption at the Eurotunnel and Port of Dover (Short Straits). The plans are designed to keep the M20 motorway in Kent open in both directions via the use of a contraflow, with access to junctions.

The plans are temporary and will only be deployed if the disruption to traffic flow at the Short Straits ports is significant enough to severely affect the Kent road network. In the instances that Operation Brock has been deployed to date, it has successfully managed to limit the effects of short-term traffic disruption to freight traffic and other road users, both on the main motorway and local road network.

The Operation Brock legislation was first put in place in 2019 in preparation for a potential no-deal departure from the European Union (EU), updated in 2020 in preparation for the end of the EU transition period, and again in 2021 in response to the coronavirus (COVID-19) pandemic.

This legislation, which expires on 31 October 2021, includes provisions requiring heavy commercial vehicles (HCVs) (any goods vehicle that has an operating weight exceeding 7.5 tonnes) heading for the Port of Dover and the Channel Tunnel to proceed only by designated routes and enables penalties to be applied to any vehicles breaching those requirements. This would continue to apply in the proposed legislative amendments as well.

Views were sought on the proposals to bring Operation Brock within a sustainable long-term traffic management plan, by removing the existing sunset clauses that would otherwise mean the legislation expires on 31 October 2021. Doing so will mean that the KRF can continue to use Operation Brock in the future as a contingency traffic management measure for disruption, caused by, for example, bad weather or industrial action.

One of a small number of exceptions to the route restrictions is a permit given to internationally bound local hauliers to continue to use local roads even if Operation Brock is in force. We proposed to keep these permits going forward.

Specific to the departure of the United Kingdom (UK) from the EU, the legislation also includes provisions requiring hauliers to ensure they are border-ready before setting off for the Short Straits. This includes possession of a Kent Access Permit (KAP), a cross-Channel permit and powers enabling the prioritisation of HCVs carrying a strictly limited range of goods to pass queues should significant disruption occur. We proposed to remove these provisions as they are no longer required.

Finally, it contains a provision enabling the introduction of a legal requirement for hauliers leaving the UK via the Short Straits to have proof of a negative COVID-19 test result before entering Kent via the M2 or M20, the intention being to reduce potentially overwhelming pressure on testing sites in Kent. We proposed to remove this provision as it has not yet been exercised.

What we proposed

The consultation comprised 2 sections. They provided:

1. The reasons why Operation Brock should become a long-term traffic management plan and proposed how to achieve this. This included removing the sunset clauses and continuing with prescribed routes for HCVs heading to the Short Straits if Operation Brock is activated.
2. Proposals to remove short-term provisions relating to the end of the EU transition period, such as the requirement for HCVs to have a KAP and cross-Channel permit, and the prioritisation of some goods. We also included proposals to remove preparatory requirements relating to COVID-19 testing locations which, to date, have not been used.

The government response should be read in conjunction with the corresponding consultation document.

Responses received

The number of responses we received to the questions concerning our proposals from organisations and individuals was:

• total number of responses, 14
• responses from individuals, 4
• responses from industry or organisations, 10

The consultation offered the option to answer questions concerning our proposals by online survey or email response. These accounted for:

• total number of responses received, 14 amount by:
  • online survey, 8
  • email, 6

This included responses from a number of stakeholders, whose special interests focused on the different elements of the consultation.

Some respondents provided comments that were not directly linked to the SIs or Operation Brock. These included parking facilities in Kent, and concerns about COVID-19. These issues are addressed in Other considerations.

Next steps

The intention is to lay the SIs before Parliament in September 2021 and debate them in both Houses. Once they are made into law by Parliament, this will ensure Operation Brock can continue to be a contingency option for the KRF to manage short-term traffic disruption at the Short Straits beyond 31 October 2021.

Our decision

We had positive support from respondents regarding our proposals to amend the Operation Brock SIs.

We will, therefore, continue amending existing legislation via the 3 SIs to ensure HCV congestion in Kent is managed after 31 October 2021.

This section outlines what was proposed in further detail and what measures we will be taking forward.

Existing legislation

The legislation underpinning Operation Brock is in 3 parts (The Heavy Commercial Vehicles in Kent Orders No.1, No.2 and No.3) and has been updated several times to reflect the incidents Operation Brock has been designed to respond to. Such incidents included contingency preparations for the end of the EU transition period following the UK’s exit from the EU, as well as for implementing COVID-19 testing requirements for international hauliers.

All 3 orders had an original sunset clause date of 31 December 2020, which was extended to 31 October 2021, so that the legislation remained valid for any potential traffic disruption in Kent as a result of the end of the EU transition period.

The Heavy Commercial Vehicles in Kent (No.1) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No.1) (Amendment) Order 2020) allows traffic officers to identify cross-Channel HCVs and control their movements within Kent. It also sets the amount of the financial penalty for failing to comply with restrictions introduced in the No.2 and No.3 orders.

The Heavy Commercial Vehicles in Kent (No.2) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No.2) (Amendment) Order 2020) restricts access to the local road network in Kent by setting out approved routes that a cross-Channel HCV can take to the ports when Operation Brock is active. It also allows hauliers based in East Kent and Faversham to use the Local Haulier Permit (LHP) scheme.

The Heavy Commercial Vehicles in Kent (No.3) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No.3) (Amendment) Order 2020 and the Heavy Commercial Vehicles in Kent (No.3) (Amendment) Order 2021 regulates access to the M20 in relation to the contraflow. It also creates more effective enforcement against non-compliant drivers and sets the amount of the fixed penalty for relevant offences under the SIs.

The 2020 amendments to the No.3 Order introduced the requirement to obtain a KAP by confirming the appropriate border documentation was in place and carried with the goods. There was also a contingency measure for HCVs carrying specific live or fresh produce to bypass the Operation Brock traffic management queuing system; this measure was never used. Further amendments were made to the No.3 Order relating to the LHP scheme. As a result of the ongoing COVID-19 pandemic, the following 2 new provisions were introduced in January 2021 to mitigate any possible congestion towards the ports:

• Expedited Return Scheme
• provision to require hauliers to obtain a negative COVID-19 test before entering Kent via the M2 or M20 when Operation Brock is enacted

Further information about the SIs is available.

Revising Operation Brock for the long-term: traffic management

The Short Straits routes (via the Port of Dover and the Channel Tunnel) for exporting goods from the UK to mainland Europe and beyond carry very high volumes of HCVs. Any disruption to the routes can swiftly lead to delays at the Short Straits. If delays on these transport routes are severe enough, this can result in significant queues of HCVs on the roads leading to them.

We have worked closely with the KRF to ensure traffic management plans (of which Operation Brock is a part) are designed to help mitigate against potential disruption. For these plans to work, legislation is needed, which is why these SIs were first introduced in 2019.

The existing legislation has successfully helped to minimise disruption at the ports and in Kent when Operation Brock has needed to be activated, most recently at the end of the EU transition period. By requiring all HCVs crossing the Short Straits to come prepared with the correct documentation, consistently high levels of border readiness were exhibited, which minimised traffic disruption in Kent and kept essential trade flowing.

Operation Brock has to date provided an effective means of minimising disruption and had a positive impact on local residents, businesses and the local road network. The haulage industry and, as a result, trade across the UK, has also benefited from this. HMG is, therefore, proceeding with further amends to the SIs to ensure Operation Brock can act as a traffic management plan in the long-term.

Prescribed routes

As with other fines issued for failure to comply with the traffic restrictions enabled by the SIs or for failure to follow an instruction from a traffic or enforcement officer, fines for not following the Operation Brock prescribed routes will be levied using:

• fixed penalty notices for UK HCV drivers
• financial penalty deposit notices for foreign drivers

Fines are normally issued on the spot, although UK drivers will have up to 28 days to pay. If a driver refuses to pay, their HCV may be immobilised.

Enforcement will be against the driver, rather than the haulier or freight forwarder. This is because the offence of ignoring the Operation Brock contraflow and prescribed routes would be committed by the driver of the vehicle. Under the relevant legislation, enforcement officers are only able to fine HCV drivers not following the road traffic regulations.

These fines are set at £300 and an HCV driver could be liable for multiple fines if they had contravened multiple requirements.

A £300 fine will act as a suitable punishment and deterrent. Setting a higher fine would break precedent with what has been done previously under the relevant primary legislation (the Road Traffic Offenders Act 1988).

Outcome to questions

Question 1: Do you agree with the proposal to remove the sunset clauses, putting Operation Brock onto a sustainable long-term footing?

We received overall positive support in the consultation to remove the sunset clauses:

Answer type	Percentage (%)	Response amounts
Yes	85.71%	12
No	14.29%	2
Don’t know?	0%	0

The current SIs include sunset clauses, meaning they will expire on 31 October 2021. It was anticipated that any potential disruption that might have occurred at the end of the EU transition period was unlikely to extend past this point. Given the high level of border readiness demonstrated by hauliers since the end of the EU transition period, the length of this sunset clause was indeed sufficient.

Of those who did not agree to the proposal to remove the sunset clauses, it was cited that Operation Brock should be a temporary measure and should therefore cease to operate in favour of permanent solutions. There was also concern that Operation Brock would be activated when it was not required.

We have assessed that Operation Brock will act as an effective traffic management plan in the long-term. The overall intent of this legislative update is to retain measures that underpin the KRF’s long-term plans to manage the types of disruption to cross-Channel traffic that have occurred in the past and may occur in the future (for example, because of bad weather, industrial action or other unforeseeable events).

Reflecting the need for long-term stability in Kent traffic management arrangements, the current 31 October 2021 ‘sunset clauses’ will be removed.

Removing the sunset clauses will provide the KRF with the ability to respond to circumstances appropriately and swiftly, minimising any disruption. The Operation Brock response plans will continue to be for temporary use and only implemented if strictly necessary to minimise traffic congestion in Kent caused by disruption at the Short Straits.

Revising Operation Brock for the long-term: removing provisions relating to the end of the EU transition period and COVID-19

We received overall positive support from respondents to the consultation to remove provisions relating to the end of the EU transition period and COVID-19.

Outcome to questions

Question 2: Do you agree with the proposal to amend the SIs to remove requirements relating to KAPs and cross-Channel (Brock) permits?

The majority of respondents agreed with the proposal to remove requirements relating to KAPs and cross-Channel permits.

Answer type	Percentage (%)	Response amounts
Yes	92.86%	13
No	7.14%	1
Don’t know?	0%	0

The existing SIs include a provision to make it a legal requirement for an HCV driver travelling through Kent to the Short Straits to have a valid KAP, which can be obtained through the online ‘Check an HGV’ service. Any hauliers not meeting the requirement risk a £300 fine.

In certain circumstances involving border readiness checks in Kent, drivers would also have needed to get a cross-Channel permit – more commonly referred to as a ‘Brock permit’ – to access the ports.

These permit arrangements were intended as temporary measures to avoid additional delays at the border, by ensuring HCV drivers had the correct paperwork before setting off and allowing them to move quickly to and through the Short Straits.

The requirement for a KAP was stood down in April 2021, as freight volumes returned to normal levels and HCV drivers’ border readiness for new customs requirements was high. Since the removal of the KAP requirement, we have not seen an increase in non-border ready hauliers arriving at the Short Straits.

The respondent who did not agree with the proposal to remove the KAP and cross-Channel permit commented that this seemed premature as it was not known what future border readiness would look like.

We are confident that the haulage industry overall understands what is required of them, and that the permanent easing of these requirements means less paperwork for hauliers. This in turn will make it quicker and easier to get to Kent to cross the border, further supporting the already smooth flow of goods from the UK into Europe.

Given the consistently high levels of border readiness exhibited by hauliers since the end of the EU transition period, we will remove the provisions relating to the KAP and cross-Channel permits from the SIs.

Question 3: Do you agree with the proposal to amend the SIs to remove provisions relating to prioritisation of certain commodities and the ERS?

The majority of respondents agreed with the proposal to remove requirements relating to prioritisation of certain commodities and the ERS:

Answer type	Percentage (%)	Response amounts
Yes	85.71%	12
No	0%	0
Don’t know?	14.29%	2

The current SIs offer a contingency plan that provides HCVs carrying certain commodities the opportunity to bypass part of the Operation Brock system if significant delays occur. The goods eligible for prioritisation are restricted to:

• single loads of live or fresh seafood products for human consumption
• day-old chicks

Prioritisation of these goods requires use of the KAP, which was discontinued in April 2021.

In January 2021, further amendments were made to introduce provisions for the ERS, which allows certain empty HCVs to use the contraflow in the event of significant disruption at the border. The rationale was to avoid disruption to food supplies by ensuring that HCVs used for those cargoes could return to the EU to pick up fresh loads with minimal delay. Neither of these contingency schemes has been required.

No respondents disagreed with the removal of these provisions. Of those who answered ‘don’t know’, they commented that they did not have an opinion particularly as neither scheme has been used to date.

The provisions were designed for the specific circumstances of the end of the EU transition period and in the context of food supply disruption caused by closure of the border in December 2020.

We recognise there is no longer such a compelling case for prioritisation of some goods and not others at this point, and that current provisions may not be readily applicable to future unscheduled disruption events.

Therefore, after working closely with the Department for Environment, Food and Rural Affairs (Defra), we will not be extending the ERS or prioritisation provisions with this set of amendments to the SIs.

We will, however, keep future disruption risks under close review and take action as necessary to safeguard major supply chains, including through seeking further amendments to legislation if required.

Question 4: Do you agree with the proposal to amend the SIs to remove contingency provisions relating to the requirement for HCV drivers leaving the UK via the Short Straits to be in possession of a negative COVID-19 test result before entering Kent via the M2 or M20?

The majority of respondents agreed to remove contingency provisions relating to HCV drivers needing a negative COVID-19 test result before entering Kent.

Those who did not agree with this proposal expressed concern that removing this provision could drive up COVID-19 cases in the area or increase the number of untested hauliers needing a test in Kent.

Answer type	Percentage (%)	Response amounts
Yes	71.43%	10
No	21.43%	3
Don’t know?	7.14%	1

In January 2021, we amended the SIs to include a contingency provision to make it a legal requirement for an HCV driver leaving the UK via the Short Straits to be in possession of proof of a negative COVID-19 test result before entering Kent via the M2 or M20, timed at no more than 72 hours before their expected departure time from Dover or the Channel Tunnel.

The intention behind the provision was to provide a means of requiring ‘upstreaming’ of haulier COVID-19 testing to reduce potentially overwhelming pressure on testing sites in Kent.

In the event, the powers were not required as sufficient ‘upstreaming’ occurred without the need for legislative intervention. The network of testing sites we have put in place around the strategic road network continues to operate well.

We will therefore not be reinstating this location-specific requirement after it expires on 31 October 2021.

The requirement for COVID-19 testing is a public health issue and not addressed in this legislation as it concerns Kent traffic management matters only. There is, however, legislation that relates to bespoke testing for hauliers as part of the International Travel Regulations. We will continue to monitor international border COVID-19 testing requirements as the pandemic develops and consider legislative requirements relating to traffic management accordingly.

Question 5: Do you think this overall approach regarding hauliers based in East Kent is the right one?

We received overall positive support to continue the LHP scheme for hauliers based in East Kent and Faversham.

Answer type	Percentage (%)	Response amounts
Yes	85.71%	12
No	14.29%	2
Don’t know?	0%	0

We proposed retaining the LHP scheme, which local hauliers can use when Operation Brock is active.

This scheme allows HCVs based at operating centres in East Kent and Faversham to use local roads to access the Short Strait ports, without joining the back of the Operation Brock traffic management queue. This scheme ensures local hauliers can continue to operate in the event of disruption without incurring additional costs and delays.

Eligible hauliers are automatically issued physical permits by Kent County Council, which will continue to allocate permits. Existing permits will remain valid.

Of those respondents who did not agree with the proposal to continue the LHP scheme, perceived anti-competitiveness for non-East Kent-based hauliers was cited as the reason behind this. However, the LHP scheme is only intended for when Operation Brock is active, to not disadvantage hauliers based in East Kent and Faversham and to minimise HCV traffic on local roads. Further clarification explains the rationale behind this in more detail.

We will, therefore, retain the LHP scheme in the proposed legislation amendments.

Other considerations

Suggestions and concerns raised

We sought views from both individuals and industry stakeholders on the proposed amendments to the SIs. While the majority of stakeholders agreed with our proposals, there were some additional questions, issues and suggestions raised.

This section addresses comments that did not directly relate to the consultation questions.

Communicating the status of Operation Brock

There was some concern about how it will be communicated to hauliers that Operation Brock has been activated.

The proposed SIs state that the traffic restrictions begin when a traffic sign is displayed on or near the coastbound carriageway of the M2 Motorway between Junction 4 (Maidstone) and Junction 5 (Stockbury Roundabout).

There will be additional signage to direct traffic clearly and safely at the sites deemed appropriate by the relevant authorities in order to implement the traffic restrictions as well as the contraflow system on the M20. This will include forewarning signs in advance of the traffic restriction notices.

HCV parking in Kent

Some respondents raised the issue of the availability of HCV parking in Kent, particularly as we will no longer be using Sevington or Manston for border readiness checks.

While this is not directly related to Operation Brock traffic management plans, we will continue to work with the KRF and other government departments to seek solutions for this ongoing issue.

We are committed to looking at both established and new approaches to increase the provision of improved overnight lorry parking in England. We are also keen to develop innovative alternative approaches to provide more capacity.

On 24 July 2018, we issued a revised version of the National Planning Policy Framework that now indicates that the need for sufficient overnight lorry parking should be considered in planning policies and decisions.

We continue to work with the Ministry of Housing, Communities and Local Government (MHCLG) to enhance this further with local authorities to highlight the criteria and consideration for HCV lorry parking applications.

Fines against HCV drivers

There was some concern as to penalising the drivers for enforcing against the driver, rather than the haulier firm.

As previously mentioned, under this legislation, enforcement procedures will be against the driver, rather than the haulier or freight forwarder, which has formal responsibility for completing the customs paperwork. This is because the offence of ignoring the Operation Brock contraflow or prescribed routes would be committed by the driver of the vehicle. Under the relevant primary legislation, enforcement officers are only able to fine HCV drivers not following the road traffic regulations.

Further clarification

Industry engagement

As set out, we will continue our programme of engagement activity aimed at helping the road haulage industry to adapt to the new trading relationship with the EU.

This includes the creation of tailored direct engagement with industry bodies at EU industry days (facilitated by the Cabinet Office’s Border and Protocol Delivery Group and the Department for International Trade), as well as industry stakeholder events, exhibition stands at physical and virtual events across the EU, and presentations to high-volume EU firms co-ordinated by ferry operators and local resilience forums. We will also coordinate direct engagement with the biggest EU haulage companies through HMRC’s EU engagement plan, which we are already supporting.

In addition, we will use our network of information and advice sites, staffed by multilingual teams, to continue to provide tailored guidance and support to international hauliers on UK import and export procedures and traffic management arrangements.

More than 280,000 hauliers have visited these sites between November 2020 and August 2021, and we intend to build on this success to provide hauliers with the information they need over the rest of the year. We are working to increase the provision of sites to potentially be available at some EU Ports and on-board ferries.

We are also updating the haulier handbook, the next edition of which is being published in 17 languages this summer. The handbook will provide international hauliers with new guidance on UK customs and regulatory requirements for importing goods into Great Britain.

Domestic journeys

Some respondents were concerned that the LHP scheme was anti-competitive in favour of hauliers based in East Kent.

The scheme is intended for use only when Operation Brock is active. If an HCV is making a domestic journey to Kent and will not be travelling across the Short Straits to the EU, there will be no requirement for the driver to use the prescribed routes of Operation Brock if it is active.

Sensible enforcement will be used whereby enforcement officers will use discretion that will aim not to hold up HCV drivers making domestic journeys. However, it is advisable that all drivers transporting goods domestically carry paperwork detailing their journey so any possible delays can be minimised.

Impact assessment

A full consultation stage impact assessment has not been conducted, as the equivalent annual net direct costs to business have been assessed to fall within the threshold for a de minimis assessment.