‘Because it’s the Law! ….

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