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The proposed changes to the drivers' hours regulations in relation to liability, due to come into force in April, are a mixture of good and bad as far as the road haulage industry is concerned. Under the new EU regulations transport concerns will be automatically liable for infringements committed by drivers they employ. However, national governments have been given a discretionary power to create a defence. This is where operators can show they have good systems in place to monitor drivers' hours  and that they have taken reasonable steps to prevent drivers committing offences.

Unfortunately no mention of use of that discretionary power by the UK government is contained in the consultation document issued by the DfT. The only defences proposed are: where a contravention of the rules arises out of unavoidable delay which could not have been reasonably foreseen - that is similar to the emergency exemption under Article 12 of the current EU rules and where the contravention was due to the fact that the driver had, for any particular period or periods, driven or been on duty other than in the employment of the person charged or other than in the employment in which he is subject to the orders of that person, and that the person charged was not, and could not reasonably have become, aware of this fact.

If the government does not make use of the discretionary power available to it, it will create an absolute liability offence, similar to overloading, when an operator's  driver breaches the hours and tachograph rules. Currently operators can be charged with permitting their drivers' hours offences but to be successful the prosecuting authorities have to show "knowledge" on the part of the operator, either actual or implied, i.e. shutting one's eyes to the obvious. It is also proposed to introduce provisions to ensure that drivers and undertakings may be prosecuted for infringements of the new EU drivers' hours rules detected here but committed abroad.

Apart from the financial penalties involved for operators convicted of "absolute" offences by the courts (a fine of up to £2,500 for a breach of the drivers' hours rules a fine of up to £5,000 for failing to install and use a tachograph and a fine of up to £5,000 and/or two years' imprisonment for deliberate falsification of tachograph records) such convictions can also lead to severe regulatory action by traffic commissioners. The commission of "serious road transport offences" can lead to commissioners holding that the requirement for an operator to remain of good repute is no longer satisfied, with the resultant revocation of the O-licence. The difficulty is that many breaches of the drivers' hours rules are committed by drivers for their own personal reasons. The introduction of "absolute liability" offences for the employer means that there will be little or no protection for the operator in such circumstances.

The element that might work in favour of the industry is that consignors, freight forwarders, tour operators, principle contractors, sub-contractors and driver employment agencies will have the legal responsibility of ensuring that contractually-agreed scheduling times comply with the drivers' hours rules. If they fail to meet that legal responsibility they will commit an "absolute" offence with similar penalties to those for the operator. It will hopefully prevent RDCs and others putting pressure on hauliers and drivers to meet unrealistic delivery times. Strangely, the consultation document states that in practice, the proposals should have no adverse impact on law-abiding operators and drivers and that the proposals for the discretionary national derogations would, in effect, mean that the existing position remains virtually unchanged!