Proposed legislative amendments on enforcing Operation Brock

Question 1

Ministerial foreword

Accepted Answer

The United Kingdom left the European Union (EU) on 31 January 2020. We are now in negotiations on our future relationship with our European neighbours; one we want to be based on friendly cooperation between sovereign equals, centred on free trade, and inspired by our shared history and values.

We are confident those negotiations can be successfully completed before the expiry of the transition period at the end of December 2020. But the agreement we seek is one that will, of course, provide for a very different trading relationship between the UK and the EU. And, if the negotiations do not lead to an agreement, the Prime Minister has made clear that we will not be seeking any extension of this transitional phase.

Regardless of the outcome of the negotiations, there will therefore be changes for which UK businesses trading with the EU need to prepare. One key area of change relates to the new controls that will be placed on the movement of goods between Great Britain (GB) and the EU from 1 January 2021.

In July, we published our new Border Operating Model, setting out for the first time in full the processes that will apply to the movement of goods between GB and the EU. We have also launched a major communications campaign on the coming changes, and we will be bringing forward a range of advice and support to help UK businesses to prepare.

Our underlying objective in all this work will be to enable trade in goods to continue to flow smoothly between the UK and the EU. But this will be an important moment of change, and there is at least initially a risk of some additional friction at the border – notably if goods arrive without having completed the necessary customs and other processes.

It is thus important that we put in place plans both to minimise the risk of disruption and to mitigate its impact should it occur. And we need of course to have a particular focus in that context on the Short Straits, given the volume of traffic that moves both on the ferries leaving Dover and through the Channel Tunnel.

We are therefore working closely with the Border and Protocol Delivery Group (BPDG) in the Cabinet Office, and with Kent Resilience Forum (KRF), Highways England, Kent Police and Kent County Council to develop a robust set of arrangements.

These will build on our experience of preparing for a potential no-deal Brexit withdrawal in 2019 and seek to enhance the approach – notably regarding arrangements to increase the proportion of heavy commercial vehicles (HCVs) (any goods vehicle that has an operating weight exceeding 7.5 tonnes) that arrive at the Short Straits border-ready.

This consultation addresses a key part of those arrangements – the secondary legislation we propose to renew and update to ensure that our traffic management plans can be effectively enforced, and incentivise hauliers to ensure they are border-ready before setting off for Kent.

I believe we have a strong set of proposals, but I am very keen to ensure we have had the benefit of the input of all those with an interest before we finalise the statutory instruments (SIs) for presentation to Parliament in the autumn.

Rt. Hon. Grant Shapps MP

Secretary of State for Transport

Question 2

Executive summary

Accepted Answer

This consultation document seeks views on the proposed updating and amendment of SIs underpinning the enforcement of contingency plans for the management of traffic disruption in Kent.

Such legislation was first put in place last year in advance of a potential no-deal departure from the EU. The three SIs enabled the activation of provisions requiring HCVs heading for Dover and Eurotunnel to proceed only by designated routes, and enabled penalties to be applied to any vehicles breaching those requirements^{[footnote 1]}.

Given the specific focus of the 2019 legislation on the possibility of disruption following a no-deal withdrawal from the EU, the SIs included ‘sunset’ clauses meaning that they cease to have effect on 31 December 2020.

The government therefore intends to bring forward amending SIs to ensure that similar powers are available in the event of traffic disruption in Kent following the end of the transition period at the end of the year.

We have been working with the Kent Resilience Forum (KRF) to develop these plans and will ensure that operational plans take account, if necessary, of COVID-19 measures.

Views are sought on the detail of the policy approach to the refreshed legislation and on proposed enforcement arrangements.

In addition, the government intends to include within the refreshed legislation provisions to incentivise hauliers to ensure they are border-ready before setting off for the Short Straits by making use of the proposed Smart Freight Service.

Views are sought on this, and on further proposals to include within the legislation powers enabling the prioritisation of a strictly limited range of goods past queues should significant disruption occur.

Question 3

Consultation proposals

Accepted Answer

Managing HCV congestion in Kent

The Short Straits route for exporting goods from GB to mainland Europe and beyond is particularly sensitive to disruptions.

The volume of HCVs using the route means that any disruption – caused, for example, by industrial action or weather events – can lead to a reduction in throughput at the French ports. This in turn reduces the frequency of cross-Channel services as ferries and trains would not be able to unload, causing delays at the Port of Dover and Eurotunnel’s Folkestone terminal.

In the absence of further contingency plans, once any holding capacity at the ports had been exhausted, HGVs would need to queue on the roads leading to the ports.

Until recently, authorities in Kent used Operation Stack to handle those queues. This entailed shutting one or more sections of the coastbound carriageway of the M20 entirely and using it to queue HCVs.

This was an effective mechanism for managing the volume of trucks trying to access Eurotunnel and Port of Dover, but caused significant issues for local traffic, creating delays for those travelling through the county and serious local congestion.

At the end of the transition period, the UK will be treated as a third country with respect to EU rules, which creates new potential sources of disruption for the Short Straits.

The French authorities will impose full EU customs and controlled goods checks on all goods travelling from GB to the EU’s customs territory at Hauts-de-France (for HCVs coming by ferry from the Port of Dover or those HCVs using Eurotunnel’s freight service). The French authorities have increased the capacity of their facilities, but these checks could nevertheless slow down cross-border movement, which could have a knock-on effect on road traffic in Kent.

Any delay due to the new checks could be exacerbated by low levels of trader and haulier readiness. For example, an HCV without the required customs and import/export documentation risks being held at port until the relevant paperwork has been provided, and in some circumstances having their goods seized or destroyed. Analysis conducted in advance of October 2019 suggested that many businesses would not have been ready for the new trading arrangements under a reasonable worst-case scenario.

To help deal with the disruption risk posed by the potential for leaving the EU without a deal in 2019, the KRF enhanced its suite of multi-agency contingency measures designed to mitigate the impact on the Kent road network resulting from disruption at ports – known overall as Operation Fennel. These measures included Operation Brock, a new arrangement enabling HCVs to be queued on the coastbound carriageway between Junctions 8 and 9 of the M20 while non-port traffic bypassed the queue via a contraflow, and at other holding areas in Kent.

Legislation in 2019

Under the original contingency plans for a no-deal withdrawal from the EU in March 2019, Operation Brock was to be delivered through temporary traffic regulation orders (TTROs). There were, however, limitations to a set of enforcement arrangements based on TTROs.

Therefore, in advance of the potential no-deal withdrawal in October 2019, the Department for Transport (DfT) laid three SIs to underpin Operation Brock and border readiness checks (BRCs), using powers in the Traffic Management Act 2004, the Road Traffic Regulation Act 1984, and the Road Traffic Offenders Act 1988:

The Heavy Commercial Vehicles in Kent (No. 1) Order 2019

─ The No.1 order enables traffic officers to direct vehicles that are not compliant with the traffic restrictions imposed by the No.2 and No. 3 Orders. It also allows traffic officers to request documentation relating to origin, destination and goods, and raises the financial penalty deposit for failing to comply with a traffic officer exercising the new powers conferred by this Order or for breaching the traffic restrictions imposed by the No. 2 and No. 3 Orders to £300.

The Heavy Commercial Vehicles in Kent (No. 2) Order 2019 (PDF, 212KB)

─ Prohibits HCVs (above 7.5 tonnes) leaving the UK via the Channel Tunnel at Folkestone or the Port of Dover from using local roads other than those on approved Operation Fennel routes.

The Heavy Commercial Vehicles in Kent (No. 3) Order 2019

─ Prohibits such vehicles from accessing the coastbound carriageway of the M20 motorway between Junction 9 and Junction 13 (the primary route to the Kent ports), unless the driver has complied with checks of border documents and is displaying a permit issued after using an approved route.

The three SIs came into force on 31 October 2019. However, Operation Brock was only intended to function for a few months – levels of trader and haulier readiness were anticipated to have increased over a few months to the point where any disruption could be handled by business as usual arrangements. As such, the SIs contained a sunset clause and they will cease to have effect on 31 December 2020.

Operation Brock in October 2019

Under business as usual conditions, just over 1,000 lorries can be held within the Port of Dover, and around 400 at Eurotunnel’s Folkestone terminal.

In 2019, Operation Brock would be used when that capacity had been exhausted to handle Europe-bound goods vehicles of 7.5 tonnes and above from going through Kent.

The existing Operation Brock SIs give the KRF the ability to create traffic restriction periods that require HCV drivers to use designated roads to reach the ports (including under specific conditions), and to follow instructions from traffic officers.

There would have been four Brock phases to handle increasing levels of congestion:

phase 1: using the Dover Traffic Assessment Protocol (TAP 20) to hold around 500 lorries on the six-mile section of A20 leading to Dover
phase 2: queuing on the coastbound M20 (J8-J9) with a steel barrier to create the contraflow, with all other non-freight traffic going through the M2
phase 3: Manston Airport HCV holding facility for all Port of Dover freight (Eurotunnel freight would have continued to be held on M20 J8-J9)
phase 4: M26 queuing system coastbound and London-bound for all Eurotunnel freight

Each phase used specific routes and locations, and all Europe-bound goods vehicles exceeding 7.5 tonnes going to Eurotunnel or the Port of Dover would have been required to follow the Brock routes and comply with any traffic signs and instructions.

Drivers who did not follow the instructions provided, or tried to use alternative routes to the ports (i.e. rat-running on local roads), could have been stopped by police or enforcement officers from the Driver and Vehicle Standards Agency (DVSA) and subjected to a £300 fine.

Fines for UK HCV drivers would have been issued using a Fixed Penalty Notice, to be paid within 28 days. If the penalty was not paid in a timely manner, the driver may have been reported for prosecution and been fined up to £1,000.
Foreign HCV drivers would have been fined using a financial penalty deposit notice and would have had to make an on-the-spot payment. If drivers chose not to pay, they would have been at risk of having their HCV impounded.

Permits and border readiness

If Operation Brock had been activated and static queues had formed on the M20 (Phase 2 and above), HCVs that planned to use the Short Straits would have needed to get a cross-Channel permit – more commonly referred to as a ‘Brock permit’ – to access the ports.

In 2019, had static HCV queues formed in Operation Brock on the M20, and at Manston Airfield (from Phase 3 and above), they would have been required to undergo a border readiness check.

While not exhaustive, this check would have established whether they were carrying the necessary customs and import/export documentation, as provided by their trader, needed to take goods through British and French ports. HCVs that:

did not need documentation (if carrying mail, or if empty)
were carrying all the necessary documentation
had the ability to get missing customs documents from an Office of Departure or a Third Party Authorised Consignor near the port

would have been issued a Brock permit.

HCV drivers deemed unready (i.e. because they were not carrying the necessary documentation) would have been denied a Brock permit and offered a choice between returning to base (their offices, or their trader), or going to a holding site where they could attempt to become border-ready by getting any missing documentation.

If they then managed to become border-ready, they would have been issued a Brock permit.

The Brock permits would have been displayed in the HCV’s windscreen when proceeding from the holding area to the ports. HCVs travelling without a permit would have been liable to interception by police or DVSA enforcement officers between the holding sites and the ports.

If intercepted, they could have been fined, sent back to base or directed back to the holding areas as appropriate. Under the 2019 legislation, Brock permits would have been valid for 24 hours.

If the M26 holding area had been in use, permits would also have been issued to drivers on the M26. Drivers would not have been allowed into the M20 holding area without an M26 permit.

Hauliers (haulage companies) based in East Kent (the districts of Dover, Folkestone and Hythe, Thanet, Canterbury and Ashford) could have received local haulier permits (LHPs) for their fleets of HCVs. Issued by Kent County Council (KCC), these would have allowed HCV drivers working for these hauliers to travel directly to the ports without having to travel to the back of the Operation Brock queues or undergo a BRC, thus preventing unnecessary mileage and cost.

The LHP would have been displayed in the window of the HCV, and would have allowed vehicles to use the local road network as normal, including the contraflow on the M20, without the risk of being unfairly fined. The scheme was developed by KCC and incorporated into the SIs.

Being border-ready

While it is the responsibility of the trader (or the trader’s agent, such as a customs agent or freight forwarder) to provide the necessary documentation to the HCV driver, it is the HCV driver who must present the documentation at the EU ports.

Being border-ready means that an HCV driver is carrying all the necessary documentation to get through the GB and EU port (or has been provided with the appropriate information to get the documentation).

This includes:

customs documentation:
- a master or movement reference number (MRN) from an import declaration if the goods are going to stay in the country of disembarkation (for example, goods going from GB to France), or a transit accompanying document if the goods are either staying in the country of disembarkation or going to move beyond it (for example, goods going from GB to Spain via France)
- an admission temporaire/temporary admission (ATA) carnet if the goods are temporarily going abroad (for example, goods going from GB to France and then back to GB)
- a transports internationaux routiers (TIR) carnet if goods are sealed and/or going to non-Common Transit Convention (CTC) member countries (for example, GB to India overland).
import and export documentation depending on what goods are carried (it is possible that a free trade agreement or sectoral deal may change some of the requirements for import and export documentation). For example, EU member state authorities will check for the following on arrival at the EU port:
- products of animal origin require an export health certificate
- plant and plant-based products require a phytosanitary certificate
- fish require a catch certificate, export health certificate and where appropriate a captain’s certificate.

Some documentation could be electronic or physical (like the MRN barcode) while others would need to be physical (like the ATA carnet). Please note that the list is not exhaustive; for more information, please refer to the Border Operating Model published on 13 July 2020.

In addition, there may be other forms of import/export documentation that an HCV driver will need to carry on behalf of their trader which would not be checked at the ports. An HCV driver using the accompanied roll on roll off (RoRo) route would need a safety and security declaration before arriving in the EU. However, EU rules mean that they can be completed shortly before arriving in the EU.

Some EU member states have additional national requirements for goods arriving from GB, for example:

France requires the use of the SI Brexit system, and the MRN barcodes for multiple consignments must be compiled in to a single ‘envelope’ MRN that will be scanned
the Netherlands and Belgium require that all movements are pre-notified using the Portbase and RXSeaport systems respectively; HCVs that are not pre-notified will not be allowed to leave Dutch or Belgian ports

Revising Operation Brock for 2021

Disruption at the cross-Channel ports at the end of the transition period is not inevitable, but it is clearly a possibility for which a responsible government needs to prepare.

Updated assessment of potential levels of disruption is ongoing, taking account in particular of further research into likely levels of readiness amongst traders and hauliers. The results of this analysis are likely to reflect that businesses have additional time to prepare, but also that their ability to do so has been impacted by the parallel challenges of the COVID-19 crisis.

At this stage it is therefore prudent to assume that overall border readiness could be at levels similar to those anticipated for October 2019, which indicates that something akin to Operation Brock will need to be confirmed for use at the end of the transition period.

The transition period has provided opportunities to improve the plans for Operation Brock and, where necessary, reflect any COVID-19 measures. While many aspects are anticipated to remain the same, such as the use of Brock permits and the associated fines for travelling without them, there are some areas that will need to change.

The M20 contraflow

In 2019, there was a permanent contraflow between Junctions 8 and 9 of the London-bound carriageway of the M20 with a steel barrier between lanes 1 and 2 of the northbound carriageway. That carriageway was reduced from three to two lanes with a speed limit of 50 miles per hour when Brock was inactive.

This approach provided an excellent contingency plan once the measures were in place, but the time taken to install and remove the steel barrier was a significant disadvantage – both requiring around a month of overnight closures. For the end of the transition period, Highways England has therefore developed a new plan making use of a concrete quick moveable barrier to set up the contraflow.

Once a specialist ‘zipper’ machine is in place, the moveable barrier can be deployed within several hours – significantly reducing the disruption entailed by deployment. The concrete blocks for the barrier will be stored at the side of the hard shoulder until needed.

The moveable barrier will be ready to use in December 2020 and will enable around 2,000 HCVs to be held – the same capacity as the previous contraflow. This will be available for long-term traffic management plans and is not just a response to any cross-Channel disruption at the end of the transition period.

Kent sites and revision of traffic management plans

As discussed earlier, goods being moved from GB to the EU must be prepared for full EU import controls from 1 January 2021.

The government has been clear that goods moving from the EU to GB will also be subject to third country import controls, but these checks will be phased in during the first half of 2021.

For Eurotunnel and the Port of Dover, this is likely to require new inland border control posts as there is insufficient space for the new facilities at the ports.

While the inland border control posts are intended for checks conducted by HM Revenue and Customs (HMRC) and the Department for Environment, Food & Rural Affairs (Defra) on inbound and outbound goods, they could also be used as new holding sites for outbound HCVs as part of Operation Brock.

We have purchased a new site in Ashford to support this. Construction at the site has commenced, and it will provide approximately 2,000 HCV holding spaces. We are in the process of working with KRF to integrate the new Ashford site into updated traffic management plans for the end of the transition period. This overall plan is still in development and is likely also to incorporate some but not all of the other parts of the 2019 approach.

Since there will be some changes to the traffic management plan, it is likely that the drafting of the SIs will need to be updated to reflect this. More details of these revisions to the traffic management plan will be made available in due course – we will of course undertake significant communications activity to ensure hauliers are informed of any revised phasing of the traffic management plan in advance of the end of the transition period.

Extending the sunset clause

As the current set of SIs expire on 31 December 2020, we need to amend them to extend the sunset clause to allow Operation Brock to continue and be enforceable in 2021.

If there is significant congestion at the border following the end of the transition period, it is likely the situation will improve substantially over the first half of 2021.

Any delays will be due in part to low levels of border readiness among traders and the haulage industry, leading to significant numbers of trucks being stopped by the French authorities. That experience should act as a meaningful incentive for those who were not border-ready to ensure they are ready next time.

We therefore anticipate that significant levels of disruption to outbound traffic are unlikely to extend much beyond the middle of 2021. Accordingly, we propose extending the sunset clause by a further 10 months to the end of October 2021 to cover this period and leave the measures in force for a short additional period in the event that disruption continues for longer than anticipated.

Road haulage industry engagement

We will develop a programme of engagement activity aimed at the road haulage industry, including information and advice sites alongside direct and virtual engagement activity, and a programme of training.

Delivery will build on what worked best in 2019 while working in a COVID-secure way.

This will supplement the publication of the Border Operating Model on 13 July 2020 – the government’s guide to how the border with the EU will work after the transition period.

More widely, on 13 July, the government also launched a major new public information campaign: ‘The UK’s new start: let’s get going’.

Over the coming months it will clearly set out the actions businesses and individuals need to take to prepare for the end of the transition period on 31 December 2020.

Conclusion

Given the potential need for a strong HCV traffic management system in Kent at the end of the transition period, it is essential to amend the SIs that underpin Operation Brock. This amendment would include:

changes to the sunset clauses
any changes to the road layout resulting from the new sites

The amendment to the SIs would also need to take account of the enhancements to border readiness checking and the use of smart freight. These aspects are discussed in the next part of this consultation.

*Question 1: Do you agree with these proposals to amend the SIs that underpin Operation Brock so that they can be implemented in 2021? If not, why not?

Using technology to upstream border-readiness checking

In October 2019, BRCs were an important component of our no-deal mitigation plans as part of Operation Brock in Kent. These checks would have done two things to improve the flow of goods through the Short Straits:

reduce the number of unready HCV drivers reaching the ports
provide guidance to unready HCV drivers to help them become ready

However, the checks would only have helped reduce the impacts of queues when they had formed; they would not have stopped unready HCV drivers reaching Kent and causing the queues in the first place.

Other than reading the guidance on GOV.UK, there was no easy way for an HCV driver to check if they were ready at the point that they set off for the Short Straits.

Therefore, we are proposing to use technology effectively to ‘upstream’ the border readiness checking process through the smart freight (SF) service. Rather than happening in Kent, we would like to use the SF service to help ensure the border readiness of goods before they depart for port.

The smart freight service

SF is an online service for the RoRo freight industry being developed by the government. The service will help to simplify and automate the process of establishing the border-readiness of an HCV to help mitigate the risk of delays.

It will ask questions relating to the expected EU import controls at the border to ensure the HCV driver has the necessary documents before they travel. The service will include an online portal for registration of goods movements and an operator application to check compliance with the service.

For the end of the transition period, two key products are being developed to upstream the border-readiness checking process to the point of loading:

a web-based portal for the SF service (the ‘SF portal’) which enables the HCV driver, or someone acting on their behalf, to self-declare if they have all the documentation they need to take goods across the Short Straits
a mobile application (the ‘SF app’) which enables enforcement officials to confirm that a vehicle is registered on the SF portal, and to see the outcome of their self-declaration

Advising HCV drivers across the country

The SF portal would be made available nationwide on an advisory basis. Regardless of which British port they planned to leave from, anyone taking goods from GB to the EU or beyond the EU could use the SF service to self-check whether they were border-ready, and thus likely to be able to get through the EU port.

We know that over 80% of drivers operating on the Short Straits are not from the UK and may not have high levels of English language proficiency. In response to this, the SF portal will be available in multiple languages.

We anticipate the SF portal would provide support to HCV drivers, and the wider border industry, by signposting information related to exporting goods from GB to the EU. Submitting information in advance of a journey commencing, the HCV driver or someone acting on their behalf (for example, their haulier or their trader) would use the SF portal to make a series of self-declarations to provide details on:

the HCV, such as the vehicle registration number (VRN)
the country of arrival in the EU, so that any country-specific requirements can be considered
what documents they are carrying with the goods

Some of the self-declarations could be ‘free text’ (such as the VRN), some could be selected from a list of options (for example, the country of arrival), and others could be a series of yes/no questions.

We do not expect that the person completing the self-declarations would need to provide details of the document such as a unique reference number; rather they would simply confirm if they have it or not. We therefore expect that the actual process of completing the self-declaration would be quick and straightforward.

The SF portal would then indicate, based on the self-declared information, if the HCV driver was border-ready or not. The SF portal would give advice to the HCV driver on a ‘traffic light system’:

green: all relevant documentation has been declared present, and goods may be taken to the port
amber: documentation has been declared present, but goods can only be taken to the port after the HCV driver has gone to an HMRC Office of Departure or a Third Party Authorised Consignor to complete customs processes and obtain an MRN barcode
red: some or all documentation is missing, and goods should not be taken to port

HCV drivers who get a ‘red’ result would be advised not to take goods to the port as they may not be able to complete their journey, and could cause a delay to other traffic.

The SF portal may be able to tell the HCV driver why they got a ‘red’ result, and provide links to guidance on GOV.UK and other sources of advice and support.

This would help the HCV driver, or a person acting on their behalf, to engage with the trader to rectify the situation, obtain missing documents and recheck if they are border ready before starting their journey. This could help avoid delays and, as some documentation cannot be provided electronically, prevent costly round trips to obtain missing documentation.

As border-readiness depends on the goods being carried, it would be necessary to use the SF portal for each journey. HCV drivers, traders, and other parts of the border industry may also need to use other government IT systems in addition to the SF service to take goods across the GB/EU border; using the SF service alone may be insufficient.

The SF service will be complemented by a wide-ranging programme of haulier outreach and engagement, and the establishment of information and advice sites at key truck stops and service stations across the UK where staff will be on hand to explain changes and how to get border-ready. We will also update and disseminate the Haulier Handbook, which was well received in 2019.

This activity will drive compliance with new traffic management plans, and support hauliers’ preparations for new border requirements.

Enforcing SF in Kent

While the SF portal’s traffic light system would be advisory across the country, we propose to make its use enforceable in Kent. This is because of the particular disruption risks at the Short Straits if levels of border-readiness are low – widespread use of SF has the potential to significantly to mitigate this risk.

The government’s intention is to legislate to enable penalties to be applied to hauliers bound for the EU that have not used the SF service on entering Kent.

This would be achieved by including provisions in our legislation allowing the KRF to establish an Operation Brock ‘Phase 0’ which is not linked to the declaration of any ‘traffic restriction period’. The KRF could instigate Phase 0 even before the M20 contraflow was established and would continue if Operation Brock moved to a different phase.

From that point on, the legislation would require any haulier using designated roads in Kent leading to the Port of Dover and Eurotunnel to be in possession of a ‘Kent access permit’ (KAP), which would be digitally issued to drivers receiving a ‘green’ or ‘amber’ result from the SF service.

Each KAP would be valid for 24 hours to cover a single trip, and police and DVSA enforcement officers could issue penalties to hauliers found heading for Dover or Eurotunnel without one. Thus, travelling in contravention of a ‘red’ result (being advised not to travel) or failure to use the SF portal at all and so not having a valid KAP, would be a fineable offence.

HCVs travelling to destinations in Kent, and not travelling internationally, would not be required to use SF. Coupled with a strong compliance and enforcement regime, this could help significantly reduce the number of unready HCVs reaching Kent. For example, if 80% of HCV drivers use the SF portal, and 80% of them follow the advice not to travel issued if they got a ‘red’ result, we could see a 64% reduction in the number of unready HCVs. This would reduce pressure on Kent, the Port of Dover, Eurotunnel and the Brock traffic management system, and make it easier for those HCVs that are border-ready to cross the border.

Fining

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 having a valid KAP would be levied using fixed penalty notices for UK HCV drivers, and financial penalty deposit notices for foreign drivers. Fines would normally be on the spot, though UK drivers would have up to 28 days to pay. If a driver refused to pay, their HCV could be impounded.

Enforcement would be against the driver, rather than the haulier or freight forwarder who has formal responsibility for completing the customs paperwork. This is because the offence of not having a valid KAP, ignoring the Operation Brock contraflow, or driving without a valid Brock permit would be committed by the driver of the vehicle.

Under the relevant legislation, police and DVSA enforcement officers are only able to fine those that are not following the road traffic regulations. This would remain the case even if somebody else had completed the SF declaration on the driver’s behalf.

We propose that the fines for not having a valid KAP are set at £300, as with the other Operation Brock fines. Please note that an HCV driver could be liable for multiple fines if they had contravened multiple requirements (for example, by not having a valid KAP and by evading the Brock queues).

We believe that 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).

Question 2: Do you agree with the principle of making use of the Smart Freight Service mandatory, including the £300 fine, for HCVs travelling through Kent and the Short Straits? If not, why not?

Compliance and enforcement in Kent

When activated, Operation Brock exists in two ‘states’ depending on what phase it is in as follows:

during the proposed Phase 0 and Phase 1, the M20 and the other Operation Brock routes would be in a state of ‘fluid flow’ (where HCVs are able to travel on the road, though at potentially slower speeds than the speed limit would allow)
when Phases 2, 3, and 4 are active, we would see a state of ‘static queues’ at holding sites on the road (for example, between Junctions 8 and 9 of the coastbound M20) or at off-road locations (for example, at Ashford)

Our proposed approach to compliance and enforcement will vary depending on which phase Operation Brock is in, including which HCV holding locations are mobilised, and take advantage of the SF app. Operational plans, including for compliance and enforcement will, as necessary, take account of COVID-19 measures.

Fluid flows

If Operation Brock were in a state of fluid flow, the intention would be for HCVs not in possession of a KAP to be identified on the basis of registration numbers, either by enforcement officials or automatic number plate recognition cameras (see Going beyond the basic model.

These vehicles could then be intercepted further down the road network by police or other enforcement officers and issued with a penalty.

A decision to intercept would, of course, always be based on operational and safety factors. If it was safe to do so, and did not risk causing more congestion, the HCV would be pulled over and, if appropriate, a fine could be issued.

An HCV without a valid KAP could also be instructed either to leave Kent or directed to an off-road holding site where it may be possible for them to become border-ready.

Static queues

If Operation Brock enters a period of static queues because congestion on the Brock routes reaches high levels, HCVs will be directed to the holding locations within the Brock system.

In such circumstances, when traffic is static for a sufficient time, compliance checkers could additionally conduct vehicle-to-vehicle checks to ascertain whether drivers are in possession of a valid KAP.

This process would be better suited to off-road sites, but we will keep all options open to provide maximum operational freedom for the KRF.

In these circumstances, this compliance check would effectively replace the manual border-readiness check planned for 2019, and would be quicker and easier because of the SF service. This process would only be used if it would help improve traffic flows.

In these circumstances, compliance checkers would select a percentage of HCV drivers with a KAP to undergo a manual border-readiness check to see if it is a valid KAP. This ‘spot check’ would help ensure that fraudulent declarations were not being made (for example, where a driver self-declared that they had all documentation to get a ‘green’ or ‘amber’ result when in fact they did not).

Where a valid KAP was not present, because they had made a fraudulent declaration, had travelled in contravention of an instruction not to (due to a ‘red’ result), or had failed to use the SF portal, the HCV driver would be fined.

As with such vehicles intercepted when the system is in ‘free flow’, they would be instructed to leave Kent (to return to their base or trader) or – if capacity permits – offered the opportunity to stay on site to try to become border-ready.

Remediation

If there is sufficient space at the off-road holding sites, unready HCV drivers will be offered the opportunity to try to become border-ready. This may involve them speaking to their trader or their haulier to obtain any missing documentation. Unready HCVs would only be allowed to remain on site for a limited period. Once they had received the necessary documentation, the HCV driver could ask to go through a manual border-readiness check. If they were deemed to be ready, they would be advised to continue their journey. Should they remain unready, or be unable to become ready, they would be asked to leave the site and return to their UK base of operation or their trader.

Contingency plans

A viable border-readiness regime is critical to maintaining the flow of traffic at the border after the end of the transition period. While upstream declarations using the SF portal with compliance and enforcement in Kent is our preferred option, we must develop contingency plans in case the SF service is unavailable (for example, due to post-deployment IT failure in 2021).

The proposed amending SIs will be drafted in such a way as to allow the Secretary of State to dispense with the requirement for HCVs to have a KAP it if the SF service is unavailable for any reason. In such circumstances, the change would be clearly communicated to HCV drivers and the wider border industry.

In these circumstances, if Operation Brock was in a state of static queues, there would be the option to revert to manual border-readiness checks within the Brock queueing system. As was the case with the 2019 plans, manual border-readiness checks would not take place if Operation Brock was in a state of fluid flow.

We consider that this would be a proportionate risk mitigation should the SF service be unavailable:

it would prevent HCV drivers from being unfairly penalised for not having a KAP, when they have no way to get one
the additional cost would be minimal as SF compliance-checking staff and the manual border-readiness check developed for the spot checks could be used
most importantly, there would remain a way to reduce the number of unready HCVs reaching the ports
Question 3: Do you agree that, in the event of SFS failure, we should conduct manual border readiness checks, to reduce the impact of potential delays on the Short Straits, instead? If not, why not?

Going beyond the basic model

This section has so far set out the basic model for how the SF service can be integrated into Operation Brock to upstream border-readiness checks on an enforceable basis.

There may be opportunities to go beyond the basic model in three areas; however, their inclusion in the operating model for Operation Brock in 2021 will be subject to resolving a number of legal, technical, and operational issues.

The additional options are:

automatic number plate recognition
local haulier permits
contingency arrangements for prioritisation

Using automatic number plate recognition (ANPR) technology to support fluid flow enforcement

When Operation Brock with SF is in a state of fluid flow, ANPR cameras could be used to spot non-compliant vehicles and aid enforcement.

The ANPR camera would capture the VRN of a passing truck, and check it against a vehicle of interest list held by the SF service. If the SF service determined that a KAPwas not present, it would send a message to enforcement officers downstream of the camera who could choose to intercept the HCV, impose penalties and redirect the haulier as discussed above.

There may in particular be an opportunity for the SF service to connect to the DVSA’s network of ANPR cameras in Kent. There would be some technical and legal issues to resolve, but in principle it would appear that real-time communication between the ANPR system and SF service could be a significant enhancement of the overall enforcement approach.

If it is not possible to integrate the DVSA’s ANPR cameras into the SF service, detection and enforcement would be carried out as described in fluid flows, static queues and fining.

Question 4: If possible, do you think that ANPR should be used with the Smart Freight Service? If not, why not?

Local haulier permits

The proposed amendments to the SIs would allow HCV drivers working for hauliers based in East Kent to continue to use local roads to move goods around the county without risking enforcement action.

This would be delivered as under the 2019 plan through a physical local haulier permit (LHP) as issued by KCC, though we are exploring the possibility of digital delivery mechanisms through the SF system.

However, if these ‘East Kent HCV drivers’ are travelling to the Short Straits ports, they will still be covered by the requirement to use SF before commencing their journeys.

The risk of unready HCVs leading to substantial delays at the border applies to all operators, regardless of where they are based.

Before accessing the roads leading to Eurotunnel and the Port of Dover, the drivers for East Kent-based hauliers will therefore still be required to have used the SF service and secured a KAP, and if they have not they will risk enforcement action. If issued by the SF service, the LHP could also act as the KAP and would only be granted if the HCV was deemed border-ready.

Question 5: Do you think this overall approach regarding hauliers based in East Kent is the right one? If not, why not?

Prioritisation

Our traffic management approach would effectively prioritise those HCVs that were border-ready over those that are unready by virtue of having a valid KAP.

Unready HCVs (those without a valid KAP) could be stopped, fined and held back until they were ready, or instructed to leave Kent; however, there may be a need for a contingency plan that prioritises certain goods through the Operation Brock system if queues build up.

The government considers that prioritisation of goods would be justifiable if two or more of the following criteria are met:

the goods are highly perishable and will lose most of or all their value within five days or less
the ‘perishable’ goods concerned are live animals and would give rise to animal welfare concerns if not moved in a timely manner (note that transporters of live animals will, as in 2019 preparations, not generally be allowed to use the Brock system)
delays to the goods would give rise to a disproportionate economic impact on a geographical area of the UK

Based upon the criteria above, the government has identified two key sectors where a contingency to prioritise goods is justifiable. These are:

single loads of seafood products
day-old chicks (DOCs)^{[footnote 2]}.

These products are highly perishable (for example, across a range of seafood species, fresh and live products can lose between 30 to 60% of their value within 1 to 2 days) and are highly dependent upon being exported through the Short Straits to reach the continent in a timely and financially viable fashion.

DOCs are live animals and must arrive at their destination within 72 hours of leaving their origin farm to ensure compliance with animal health legislation. They cannot be fed in their vehicle, and delays risk dehydration and mortality.

Prioritisation would clearly only be manageable in terms of traffic management if it was applicable to relatively small numbers of HCVs. Defra estimates that on average about 70 HCVs a day would be carrying seafood products or DOCs. In the context of the overall volumes of vehicles using the Short Straits, this would appear a small enough number to accommodate in such arrangements.

A specific route for the prioritised vehicles will be agreed with the KRF, with use of that route by outbound HCVs conditional on having a ‘priority permit’. Using the ‘priority route’ without the requisite permit could see the HCV driver stopped and fined.

In summary, implementation of a prioritisation approach would work as follows:

a driver of a prioritised HCV would need to get a ‘green’ or ‘amber’ result on the SF portal and a KAP to declare that they are border-ready
they would then be instructed to travel to a muster point where the presence of a valid KAP would be confirmed
- if the SF Service were unavailable, a manual border-readiness check would be conducted instead
to reduce the risk of abuse, documentary checks and some physical inspections of the cargo of the HCV would be conducted to ensure the load is as stated and qualifies for prioritisation:
- those found to be abusing the system would be instructed to go to the back of the Brock queues, and we are exploring if it is possible to levy a fine
an HCV carrying prioritised exports that was deemed to be border-ready and with a valid KAP would be issued with a priority permit, either electronic or physical, and would be allowed to travel down the priority route to the border

We would like your views on whether the legislation should make possible the prioritisation of certain highly perishable products as described previously.

Question 6: If possible, do you think that this is the right approach to implement prioritisation as part of Operation Brock as a contingency? Why do you say that? If you have any supporting evidence, please include this.

Supporting other British ports

Our analysis for the potential no-deal withdrawal from the EU last year suggested that the Kent ports would be expected to see significant HCV queues due to delays at the French and British ports, and the volumes of traffic carried through the Short Straits.

Comparatively, other British ports that support RoRo services to the EU have much smaller volumes of traffic, and the impacts on their road networks would have been smaller. It is because of the scale of challenge faced by Kent that we are supporting the county with this legislative package.

Nevertheless, we will continue to work closely with the local resilience forums (LRFs) or their equivalents across GB to ensure that:

there is adequate consideration of potential traffic impacts resulting from the imposition of new checks at EU ports
where necessary, LRFs implement appropriate local traffic management plans (such as Operation Transmission in Hampshire relating to potential disruption in Portsmouth).

The SF service will be deployed nationally, including outside Kent on an advisory basis. This will help all HCV drivers taking goods from GB to the EU – not just those using the Short Straits – to be more confident that they are carrying the right documents to get through EU ports.

We will work with LRFs outside of Kent to see how their post-transition traffic management plans can take account of the SF service.

Question 4

How to respond

Accepted Answer

The consultation period began on 3 August 2020 and will run until midnight on 23 August 2020. Ensure that your response reaches us before the closing date.

If you would like further copies or alternative formats (Braille, audio CD and so on) of this consultation document, please email OperationBrockSIs@dft.gov.uk.

You may respond by:

the online survey our preferred method

or

by downloading the response form and emailing OperationBrockSIs@dft.gov.uk

or

by emailing OperationBrockSIs@dft.gov.uk

When responding, please state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of a larger organisation, please make it clear who the organisation represents and, where applicable, how the views of members were assembled.

If you have any suggestions of others who may wish to be involved in this process then contact us.

Question 5

Freedom of Information

Accepted Answer

Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

If you want information that you provide to be treated as confidential, be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.

In view of this, it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances.

An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the DfT.

The DfT will process your personal data in accordance with the Data Protection Act (DPA) and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.

Question 6

Data protection

Accepted Answer

Department for Transport (DfT) is running this consultation on the amending the statutory instruments. underpinning the enforcement of contingency plans, of Operation Brock at the end of the EU transition period until 23 August 2020.

Your consultation response and the processing of personal data that it entails is necessary for the exercise of our functions as a government department. Any information you provide that allows individual people to be identified, including yourself, will be protected by data protection law and DfT will be the controller for this information.

Your personal data may be shared with the Department for Environment, Food & Rural Affairs but not with any third parties who will process the data on our behalf as necessary for the purpose of analysis and will not be given to any other third party beyond these. DfT’s privacy policy has more information about your rights in relation to your personal data, how to complain and how to contact the Data Protection Officer.

In this consultation we’re asking for:

your name and email address, in case we need to ask you follow-up questions about your responses (you do not have to give us this personal information, but if you do provide it, we will use it only for the purpose of asking follow-up questions)
whether you are representing an organisation and, if so the:

- name of that organisation, for identification purposes - approximate size of the organisation, to better understand how many people your response represents - primary location of your business operations to better understand regional impacts - type of organisation you have including if affiliated to exporting what your business exports, in order to better understand your organisations relationship to the Operation Brock plan

Additionally as an individual we are asking for your location with the UK in order to better understand how Operation Brock may effect:

you personally
in a geographically sense
your response towards these proposals

We will not use your name or other personal details that could identify you when we report the results of the consultation. Your information will be kept securely and destroyed within 12 months after the closing date. Any information provided through the online questionnaire will be moved to our internal systems within 2 months of the funding period end date.

Question 7

What will happen next

Accepted Answer

A summary of responses, including the next steps, will be published within three months of the consultation.

Paper copies will be available on request.

If you have questions about his consultation, please contact us at OperationBrockSIs@dft.gov.uk

Question 8

Annex A: Impact assessment

Accepted Answer

A light-touch impact assessment including a sensitivity analysis has been conducted to analyse the uncertainty of the Kent traffic management SIs and to limit the risk of error to UK hauliers. The analytical assurance for this assessment is considered medium.

Publicly available data published by DfT has been used to quantify the average yearly number of road haulage vehicles that pass through the Short Straits. Average hourly wage has been obtained from the Office of National Statistics to estimate the familiarisation costs imposed on vehicles that fall in scope of the proposed measures.

The analysis on congestion impacts was largely qualitative and proportionate to the timelines.

We intend to publish a copy of the light-touch impact assessment alongside the response to this consultation.

If you think that there is further evidence that could be used for measuring the impact of the proposed policies in this consultation, please include this in your response.

Annex B: Full list of consultation questions

General

Your (used for contact details only):

name?
email?

Are you responding:

as an individual?
on behalf of an organisation?

Individual details

You live in:

England
Scotland
Wales
Northern Ireland
other?

Organisation details

What is the name of your organisation?

How large is your organisation?

1 to 250 people
More than 250 people

Your organisation primarily operates in:

England?
Scotland?
Wales?
Northern Ireland?
Great Britain?
United Kingdom?
Europe?
other:

What sort of organisation?

Ports and Carriers (including Eurotunnel)
The Haulage sector (haulage firms/hauliers, warehousers, freight forwarders and so on plus HCV drivers)
Exporters and their intermediaries (traders, customs agents and so on)
Local authorities and other public-sector bodies
Other:

Exporters

What goods do you export?

Consultation questions

Question 1: Do you agree with these proposals to amend the SIs that underpin Operation Brock so that they can be implemented in 2021? If not, why not?

Question 2: Do you agree with the principle of making use of the Smart Freight Service mandatory, including the £300 fine, for HCVs travelling through Kent and the Short Straits? If not, why not?

Question 3: Do you agree that, in the event of SFS failure, we should conduct manual border readiness checks, to reduce the impact of potential delays on the Short Straits, instead? If not, why not?

Question 4: If possible, do you think that ANPR should be used with the Smart Freight Service? If not, why not?