Consultation outcome

Summary of consultation responses and outcome

Published 29 May 2019

1. Introduction

The Traffic Commissioners for Great Britain are independent specialist regulators exercising licensing and tribunal functions. They are responsible for the regulation of commercial vehicle operators based in Great Britain and for regulating the conduct of professional drivers in the truck, bus and coach industries.

As part of their key strategic objectives, the commissioners aim to promote a safe road transport industry which supports compliance, fair competition and protects the environment. Their functions in relation to the conduct of professional drivers is a critical part of this work.

Traffic commissioners must apply the law. When making decisions on individual cases they will only do so on the available evidence. In checking that vocational drivers are compliant and safe traffic commissioners carry out a balancing exercise to assess the relevant risks.

In accordance with section 4C of the Public Passenger Vehicles Act 1981, the Senior Traffic Commissioner has issued Statutory Guidance and Statutory Directions Statutory Document No. 6 - Vocational Driver Conduct to guide traffic commissioners. That document describes how commissioners should apply the law and take a proportionate approach in exercising their regulatory powers. The Statutory Document also informs professional drivers and their employers on the approach that traffic commissioners will adopt when considering specific matters of conduct.

As case law changes, the document needs to be reviewed. Meeting the expectations of the Regulators’ Code and understanding how the document might impact the industry is of clear importance to that review process.

Between 29 May 2019 to 24 July 2019 the Senior Traffic Commissioner held a 12 week consultation into a proposal to revise the Statutory guidance and Statutory Directions issued by the Senior Traffic Commissioners The publication of this summary of responses has been delayed for various reasons, most recently due to priorities around the Coronavirus (COVID-19) pandemic.

The consultation process sought responses from the industry, stakeholders and other interested parties on specific changes made to Statutory Document No.6 and, particularly on the approach to:

• mutual recognition of driver disqualification between the GB and Republic of Ireland
• abusive behaviour towards officials
• hearing cases when drivers fail to attend without notice
• additional language support for drivers during hearings
• increased penalties for mobile phone use
• starting points for military personnel
• revised entry points with case examples

2. Executive Summary

The Senior Traffic Commissioner is grateful of the time that interested parties took to respond to the consultation. The delay in publishing this summary is no indication of the importance placed on this work.

In total 21 responses were received to the consultation. The category of organisations responding are shown in table one below.

Table one

Organisation	Number of responses
Trade organisations	4
Training organisations	3
Operators / Transport Managers	5
Individuals	6
Consultants / Legal representatives	2
Trade Union	1

The responses indicated broad support for the approach of the Senior Traffic Commissioner.

Sixteen respondents provided comment to some or all of the seven questions posed in the consultation. Other responses were more general in nature, but nonetheless provided useful insight. Several of the responses provided additional detail either in response to the questions or on separate issues related to drivers.

All responses have been carefully considered and amendments to the draft document have been made, where appropriate. Part 3 of this document provides more detailed information as against each question.

The revised Statutory Document will now be introduced with effect from 28 September 2020. The document will continue to be reviewed regularly to respond to changes in the case law.

As a result of this consultation the Senior Traffic Commissioner and the traffic commissioners have also decided that regulatory decisions taken at driver conduct hearings are to be published. Since June 2020 these decisions have been published weekly on GOV.UK and can be viewed at:

Regulatory decisions about truck, bus and coach operator licences and safety standards

3. Detailed Summary of Responses

The consultation set out seven specific questions. This section summarises the responses to each question in turn. In some responses it was unclear whether the respondent was supportive or not. These will be categorised as ‘Unclear’ in the tables but any relevant comments will be included in the narrative. Respondents who did not answer the question are shown as ‘Not specified’. Respondents who indicated to having no further comment to a specific question are presumed to be in agreement.

3.1 Question 1

	Yes	No	Unclear	Unspecified
Do you agree with the proposal for commissioners to determine conduct matters on the evidence available, where a driver (who presents a significant risk to road safety) fails to attend a first hearing without giving notice? If you do not, please explain your reasons.	15	0	2	4

The majority of respondents were supportive of this approach with no significant opposition. Several responses indicated the need to ensure that the letter sent to a driver clearly sets out that the case may be determined in the event of non-attendance. One trade association respondent indicated that support for the measure was caveated on a driver acknowledging receipt of the letter and no subsequent request for an adjournment. A response from a solicitor highlighted similar concerns and the problem of disqualification in absence due to a driver not receiving the correspondence through no fault of their own.

The traffic commissioners appreciate the comments made and are particularly mindful of regulatory action being taken against drivers without their knowledge. The Sentencing Council guidelines indicate that a court may consider a disqualification in absence where there is no reason to believe the party is not aware of proceedings and after statutory notice has been served. Given the preventative nature of this jurisdiction the Senior Traffic Commissioner considers this to provide a sound basis upon which to proceed in driver conduct cases.

It is the responsibility of a driver to ensure that DVLA is updated with any change of address and the traffic commissioners must guard against drivers who purposefully avoid contact. A driver will receive a letter calling him/her to a hearing and will usually receive several weeks notice. The driver will also receive confirmation of any decision taken. Provided the driver has fulfilled their obligations to update their address details it is unlikely that a driver will not receive either letter. Should a driver not receive the initial letter it is open for him/her to make representations to the traffic commissioner. Any request received for an adjournment is considered on its merits. If the driver can demonstrate a justifiable reason for an adjournment and the traffic commissioner is satisfied that granting a request outweighs the risk to road safety, it is likely to be granted.

One respondent suggested that the practice of giving a person a date and time was outdated and that the Office of the Traffic Commissioner should offer a range of dates and times and ask them to indicate their preference. It was suggested that this form could also include the capture of employer details in reference to question 7. It should be remembered that the driver is being called to a formal tribunal hearing and many respondents remarked on the need for drivers to understand the seriousness of the jurisdiction. It is not currently common practice for comparable tribunals or the Courts to offer parties a choice of dates. There appears no reason to deviate in this jurisdiction, particularly considering the additional resource burden that would be placed on the listing of cases each year. This resource is paid for from public money that can be used to greater benefit elsewhere.

The response from a consultant suggested that the document could be amended to include ‘a significant risk to passengers’ in addition to the road safety consideration. A separate respondent questioned why it was limited to a ‘significant risk to road safety’ stating that vocational entitlement holders need to understand the importance of their commitment to holding such entitlement. The traffic commissioners accept these comments and have amended the wording of the published document.

3.2 Question 2

	Yes	No	Unspecified
Do you agree with the amendments made to the entry points for conduct matters (Annex A)? More generally, do you think the referral and starting points are easy and clear to follow? Do they reflect the right approach for each specific offence?	13	0	8

Again, the majority of respondents welcomed the amendments to the entry points for conduct matters. Most commented on their usefulness and ease to follow. Two respondents stated that the description could be clearer. The Senior Traffic Commissioner has considered these points but, on balance, has decided to not make any further amendments. Several respondents provided additional comments.

A firm of solicitors recognised that entry points are a genuine attempt to give realistic guidance in the interest of fairness and consistency to traffic commissioners. It is suggested that the entry points and guidance need to emphasise that the question of the current fitness and whether action is required is genuinely considered on a driver by driver basis.

The response suggests that the issue of the passage of time and other conduct should be more explicit. The Senior Traffic Commissioner is aware that the traffic commissioners already apply these principles in appropriate cases.

A trade association raised concern regarding references to operators being called to public inquiry as a result of a single incident of a vehicle striking a bridge. The response goes on to suggest that where driver error had been identified the police would prosecute the driver for driving without due care and attention. This should be the starting point for any action by a traffic commissioner and the starting point should refer to ‘an offence, penalty or conviction’ rather than a notification. The reference by the Secretary of State is in relation to driver conduct, i.e. different to a prosecution test which may include a public interest stage.

A large bus operator remarked that they were only encouraged to notify traffic commissioners when dismissing drivers for issues connected to the PCV entitlement and not for other issues. They cited an example of a driver assaulting a passenger being notified to the traffic commissioner but not if the assault involved another driver. They believed that both incidences should be reported. The legislation interprets conduct differently for LGV and PCV entitlement. Whereas a traffic commissioner may only consider LGV entitlement on conduct as a driver, the legislation in regards of PCV entitlement provides for consideration as a driver and ‘in any other respect relevant to his holding a passenger-carrying vehicle driver’s licence’.

The Senior Traffic Commissioner references in the document that a PCV driver convicted of a violent offence can expect to be called to a hearing where the starting point for consideration is the suspension of the entitlement. A traffic commissioner may consider taking action against a driver where a finding of guilt has not been made but the evidence presented must open to scrutiny and be sufficient to allow a finding to the civil standard. The body presenting the evidence should be expected to attend any hearing and present that evidence and be questioned on it by the relevant party.

A trade union suggested that the starting points in Annex A should include reference to where an official has been subject to abusive behaviour by a vocational driver. The Senior Traffic Commissioner has considered this suggestion and has noted recent changes in the criminal law. The annex has been updated accordingly.

A transport manager stated that he considered there to be a disparity of consequences between offences and that all repeated offences should have more serious consequences. He also suggested that the additional disqualifications imposed for drink drive offences were significantly lower than those for falsification offences and any driving offence has the potential to cause the same amount of harm. The Senior Traffic Commissioner understands these concerns and agrees on the potential seriousness of a driver committing any offence. In setting starting points the Senior Traffic Commissioner has considered the requirement of proportionality and that offences of falsification always occur when driving large vehicles vocationally whereas many of the other offences occur in private vehicles. Each case is considered on merit and the starting points are a guide not an instruction to traffic commissioners.

3.3 Question 3

	No comment/agree	No	Not specified
Do you have any comments on the new entry points included for Armed Services Personnel (Annex B)?	16	1	4

Most respondents either agreed or provided no comment on this question. One respondent from the industry suggested that too much leniency was being shown to military drivers and that the fact that the driver was in military service did not change the offence committed. The Senior Traffic Commissioner refers to the unique circumstances of military drivers as detailed in the draft document.

A training provider commented that the Armed Forces should not be exempt from Driver CPC. We note this suggestion but it is a matter for Parliament assisted by the Department for Transport to consider.

A different respondent suggested that the Senior Traffic Commissioner should consider notifying a Commanding Officer of all decisions involving a driver. For all cases this would create additional delay in addressing any risk as the information initially provided by drivers does not include the details of the Commanding Officer. The Senior Traffic Commissioner will consider how processes can be adapted in the more serious cases to include notifying the Commanding Officer.

3.4 Question 4

	Helpful	Unhelpful	Other/No comment
Do you have any comments on the additional case examples outlined in Annex C? More generally, do you think the case examples are helpful in educating drivers on conduct matters and the consequences of failing to meet the relevant standards as a professional driver?	16	0	5

All respondents to the question indicated the value of the case examples to help employers and drivers in their understanding of the traffic commissioners’ approach to different scenarios and to assist operators and other interested parties in the provision of training. Some of the comments made with regard to the starting points in question 2 are relevant to this question but have not been replicated here.

A trade association commented that the case examples reference the use of devices to disable or interfere with the tachograph recording equipment of a speed limiter and suggested that it may be useful to include On Board Diagnostic (OBD) systems which interface with speed limiter and tachograph systems to ensure that the intention was clear. The Senior Traffic Commissioner considers this to be a useful suggestion.

A trade union commented that further case examples on abusive behaviour should be provided. The complexity of such incidents can be difficult to describe in example. In practice it may not be helpful to try and do so. The inclusion in the starting points provides the basis for highlighting the seriousness and educating drivers.

3.5 Question 5

	Agree or indicated no comment	Disagree	Not answered
Do you have any comments on the additional guidance around drivers who may require additional language support during proceedings?	17	0	4

Most respondents chose not to make any further comments or supported the principle of language support being provided. Several respondents confirmed that the provision of support is in the interests of natural justice.

Two respondents, one of which is a major operator, highlighted the risk of drivers not being able to understand road signs or drivers not being able to communicate with passengers. The traffic commissioners’ role in vocational entitlement is to consider whether a person is fit to hold that entitlement in relation to their conduct. It falls outside of the jurisdiction of the traffic commissioners to determine the standards required of drivers in obtaining the entitlement. This is a matter for Parliament to set and the relevant Executive Agencies of the Department for Transport to implement.

The criteria for the recruitment and induction of staff is a matter for employers to consider.

3.6 Question 6

	Yes	No	No comment
Do you have any views on how the Statutory Document should be communicated in order to promote the importance of professional driving standards and compliance?	16	0	5

Sixteen respondents provided comments on how the Statutory Document should be communicated to promote the importance of professional driving standards and compliance. Repeated suggestions for communication were to use:

• OTC news briefings
• Trade associations / Trade Unions
• DVSA blogs
• Trade Press
• Social media
• Operators

The traffic commissioners will seek to utilise these avenues to promote the document. The traffic commissioners have well established relationships with trade associations and are grateful for their continued support in publicising the work of the traffic commissioners. This is through their own communication content or at nationwide events.

Two respondents suggested that all drivers should have a copy. It was recognised that this may be cost prohibitive, but cited the benefit of removing the excuse from drivers that they were unaware of the requirements. One of the respondents stated that sending it to all entitlement holders would ensure that those currently not using the entitlement would be informed. This approach is considered cost prohibitive as the evidence of a successful outcome is not tested. There would be no way of measuring whether a driver had received a copy or, if so, had read and understood it.

Similarly, a separate respondent suggested that the document should be sent to all transport managers (or all operators) by email or post. Although this would be less costly it would still incur a significant cost if postal services were used, with the same difficulties in measuring success. For these reasons the traffic commissioners are not intending to send the document through the mail to either drivers, transport managers or operators. However, the Office of the Traffic Commissioner now has more scope to target news alerts to those operators who have registered an email address with the traffic commissioners. This will be used to maximise the audience and the alert will include links to the document. The traffic commissioners consider this an appropriate balance between publicising the document as widely as possible and cost.

Four respondents raised the benefits of inclusion in Driver CPC syllabuses. It was recognised that the framework does not currently provide for Government to mandate content, but a respondent suggested that public bodies could seek to influence driver training content by providing completed training resources. The document provides case studies that could be used by training providers and companies as they see appropriate. The traffic commissioners will consider the opportunities offered through Driver CPC further and will discuss with stakeholders.

Three respondents suggested that drivers would benefit from guidance presented in a shortened format, such as a leaflet highlighting the significant aspects. Traffic commissioners will ask DfT officials to review the practicality of producing and making a leaflet available on the website for download. A separate respondent made the suggestion that specific guidance for drivers relating to this jurisdiction should be available on the traffic commissioners’ website. Traffic commissioners note that GOV.UK currently provides advice for drivers, and this document is available on the traffic commissioners’ site. It will be considered further how this may be presented to help the promotion of the jurisdiction.

3.7 Question 7

	Yes	No	Other/No comment
Would you find it beneficial for notice to be given of driver conduct hearings and decisions? What is the most effective way that this could be achieved given any restraints on releasing personal information such as driving licence numbers.	16	0	5

The majority of respondents commented that notification of decisions would be valuable and many provided ideas on how this should be achieved. The need for some caution was expressed by a trade association and in a response from a firm of solicitors. The trade association highlighted the risk of prejudicing a driver’s career if advance publication of a hearing occurred and intervention was found to be disproportionate at the hearing. The Senior Traffic Commissioner accepts that there is this risk and advance notification of a hearing will not be pursued at this time.

The response from the solicitor questioned the legitimacy of publicising hearings which he considered to be more akin to an ‘interview process’. We do not recognise the premise. The response questioned whether legislative change would be required. The question of public hearings was specifically addressed in paragraph 66 (updated to paragraph 70) of the document which stated:

Although Sections 113 and 116 of the 1988 Act are silent as to whether a driver conduct hearing should be in private or at a public hearing, traffic commissioners seek to regulate in an open and transparent manner. That way the public can see that traffic commissioners carry out their role free from undue influence from any party. Conducting the hearing in public also complies with Article 6 of the European Convention for the Protection of Human Rights (‘the Convention’), which indicates that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Convention also states that judgment shall, in most circumstances, be pronounced publicly.

Three further respondents commented that the driver should be mandated to provide the details of any employer or simply asked at the end of the hearing, so that direct notification could be made. One suggested an automatic suspension if the details were not provided. Mandating the details of an employer would require legislative change that falls outside of the ambit of the traffic commissioners. There would also be issues regarding agency drivers or those without a current employer. For these reasons the traffic commissioners will not pursue this option.

A separate trade association suggested the use of push notifications through the DVLA. The Office of the Traffic Commissioner has discussed this with DVLA officials and this might be possible if DVLA were able to introduce changes to the Share Driving Licence service.

Six respondents suggested that details could be published in Applications and Decisions and Notices and Proceedings, as for operator licence and transport manager cases. These are statutory publications with their purpose set out in legislation. The traffic commissioners considered this option but it was discounted as the automated process for the current publications could not be replicated for drivers. This would lead to delays in any introduction and an increase in resource required. It would also not be possible for a search of a wider timescale than a single week to be carried out easily.

A separate respondent made the suggestion of releasing details through the Vehicle Operator Licensing system. The details of how this proposal could work was not clear. The data is currently held on two separate IT systems presenting difficulties in linking drivers to employers. The majority of drivers considered at hearings are those who incur driving convictions and disqualifications in private vehicles, so there is no obvious link to an employer.

One respondent suggested that decisions should be released through a named media outlet as all drivers needed to know and be reminded of these sanctions. Traffic commissioners currently publish written determinations in significant cases to encourage publication in trade media. This helps to promote a greater understanding within the industry on the importance of compliance and common areas of concern. Many of these decisions include the conduct of drivers. It would not be appropriate for traffic commissioners to seek to release this information directly through one selected media outlet.

After considering the general support for some form of publication of decisions related to drivers the traffic commissioners have commenced publicising the result of all hearings on a single spreadsheet placed on GOV.UK. This spreadsheet will be updated weekly and will run for a reporting year (April to March). The list will be alphabetised and can be filtered as required.

The correct identification of a driver remains an important consideration, whilst still managing the constraints of data protection legislation. The purpose of publicising decisions is to allow employers the opportunity to know of any action taken against their drivers, which impact on their right to drive. The information provided must be sufficient for an employer to identify the possibility that a driver may have been considered at a hearing and allow for further investigation with that driver. The published information cannot be sufficient to provide a definite identification of the driver as that would involve publicising personal information protected by data protection legislation. It is incumbent on employers to make these further checks, based on the published data.

After considering all responses and taking advice from relevant data protection specialists the traffic commissioners have determined what information is to be published that is sufficient for an employer to investigate further. This includes the name of the driver, the first digits of their postcode and the year of birth. Taken together it is considered that this would allow any person with appropriate access to personal records to quickly identify a driver.

3.8 Additional comments

A number of respondents made comments regarding the wider consultation document.

Two respondents expressed their concerns of the conditions faced by drivers with inadequate facilities and the risk of theft. The traffic commissioners note these concerns and are aware of the attempts within the Department for Transport to improve the position and are supportive of these initiatives. However, traffic commissioners have a responsibility for regulating the conduct of drivers and seek to do this in a transparent and proportionate manner.

A respondent suggested that the document should make clear that ‘conduct’ does not just mean breaches of criminal law, but has the potential to mean any objectionable behaviour, whether or not a criminal of civil offence has occurred. The document defines the interpretation of conduct and it is considered to be sufficient for the purpose of the document. The Senior Traffic Commissioner will consider this when progressing any simplified guidance directed at drivers as mentioned in question 6.

The same respondent also suggested that more information could be provided on the appeal process. The appeal process is a matter for the Magistrates’ or Sherriff Court. Drivers are advised of the appeal process in letters advising them of the decision. The Senior Traffic Commissioner will also consider this in any future guidance directed at drivers.

A trade union welcomed the proposal that abusive or intimidating behaviour towards an enforcement official could lead to a determination of unfitness, but suggested that it should be extended to include any public official. This approach would protect staff engaged in the testing of vehicles or other frontline roles from such behaviour. The Senior Traffic Commissioner accepts this suggestion and the document has been amended.

On the same amendment another respondent observed the fine line between what one person classed as intimidating or abusive conduct, which another believes to be assertive. The determination of abusive or intimidating must draw upon the criminal definition. This sets out that a person commits a misdemeanour, punishable with a fine or imprisonment if he/she:

wrongfully uses violence to or intimidates any other person, or his wife or children, with a view to compel him to abstain from doing, or to do, any act which he has a legal right to do, or abstain from doing.

Any allegation of abusive or intimidating behaviour must meet the civil test of proof and traffic commissioners will consider on the evidence provided by either party.

A training provider remarked on the difficulty in attracting new drivers to the industry and cited concerns over the legislation and rules may be one reason. The respondent suggested that a six-month amnesty should be applied to newly qualified drivers. The Senior Traffic Commissioner notes the concern and believe that the Driver CPC modules could provide the assistance required. The benefits of education are agreed, in line with the Regulator’s Code, and traffic commissioners believe that there are opportunities for drivers to receive training both formally and informally. It would not be appropriate for a traffic commissioner to simply apply an amnesty for new drivers but may take into account inexperience as mitigation when determining the sanction to apply.

Two respondents commented that traffic commissioners should have the power to prevent drivers with preserved entitlement from driving vehicles that fall within C1 or D1. This would require a change in legislation and would be a matter for Parliament.

On other respondent detailed their concerns regarding PCV drivers accelerating through amber/red lights and suggested a local working committee is required. Although such behaviour is of concern to the traffic commissioners it is a matter for the police to enforce and refer drivers to a traffic commissioner for these matters. The ongoing review into road policing may wish to consider this issue.