My Lords, the Committee will recognise that there are legal limits regarding the size and weight of heavy good vehicles operating in the UK.
What therefore happens if industry needs to move an abnormally heavy or wide load which, without undue risk or expense, cannot be subdivided into smaller compliant loads? The Secretary of State can make an order under Section 44 of the Road Traffic Act 1988 relaxing all or some of the requirements in the construction and use regulations. Since time immemorial this has been done by an SI known as a special types general order—STGO. STGOs cover the majority of industry’s requirements, and I have an interest that I will come to in a moment.
The Committee will not be surprised to hear that STGO has significant provisions for notification of most proposed movements under STGO to the relevant police, highways and bridge authorities. DfT started extensive work on the current STGO in the early 1990s. STGO is drafted so that notifications have to be made in writing, not by telephone. At the time, realistically the only way of making a notification was by letter or fax. It was only much later that notifications started to be made by email, and online activity was in its infancy. STGOs were drafted taking into account the available technology at the time. There were numerous difficulties. Faxes could get lost, and it was difficult to ensure that all authorities were actually faxed. There are a very large number of relevant bridge and highways authorities, and not all are obvious.
A few years ago, to address these problems and others, Cascade Software developed software called AbHaulier to help operators plan their routes and make notifications. I should state that I have no previous involvement with Cascade, other than receiving a briefing at a trade association meeting. The Highways Agency, now Highways England, developed its own system called Electronic Service Delivery for Abnormal Loads—ESDAL. This system allows operators to plan their route and then make all the necessary notifications. I will not weary the Committee with a full description of the functionality of either system.
It is here that I should declare my interest as I own and operate a tank transporter, used under STGO, in conjunction with the REME Museum. Nowadays, I use ESDAL to make all my notifications. While the system has still has some glitches, it is pretty good. For a repeat movement, I can now make a notification for an 80-mile journey in about seven minutes. I would like to comment on the ESDAL helpline and its staff. It is really very good and a credit to Highways England and the previous Labour Government who must have agreed to the expenditure. There is debate within industry about which system is better, and I suspect that there are pros and cons for each.
However, apparently Merseyside Police is insisting that operators cannot email notifications and that they have use either use ESDAL or post—I should point out that there is no prospect me ever having to make a notification to Merseyside Police. This means that hauliers cannot use the Cascade AbHaulier system.
Not only do ESDAL and other systems generate email notifications in the prescribed format but ESDAL has additional functionality for the notifiable authorities, including the police. For instance, in the case of Merseyside Police, rather than manually sorting through a large number of email notifications, only a small proportion of which are of interest and concern, it can now use
ESDAL to set filters so it can properly prioritise its activity. I understand from the Minister’s officials that the labour savings in this one force alone are considerable, and of course there are many forces. However, some in the industry claim that ESDAL is slow and takes more time for operators, which costs them money. However, I am deeply concerned that the Merseyside Police action is ultra vires, and might also have an adverse effect on competition and innovation, because it would put Cascade and any other software house in a weak position.
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The problem is that STGO requires notice to be given. As I understand legislation, notice means in writing and not verbally. It is obviously necessary to inform the relevant authorities in writing so that there can be no misunderstanding about what is proposed. As far as I am aware, a notification by email is in writing and meets the requirement of STGO. Of course, email is far better than fax because there is a very good audit trail and an email cannot get lost.
I have several questions for the Minister. First, am I correct in asserting that an email notification to the relevant authority, including the police, is compliant with STGO even if that authority or police force purports not to accept them? Secondly, where in STGO does it say that a relevant authority, including the police, can exclude a certain ubiquitous means of communication? Thirdly, if an operator notifies a police force by email, even though that police force says that it does not accept email notification—although presumably they will negotiate by email—could that operator be in legal difficulties? If so what?
In answer to my third question, the Minister may say that that is a matter for the courts or that the operator could resort to judicial review. I do not think that would be a good answer. Operators will not want to damage their relationship with the police by deliberately getting a matter into the courts, and judicial review is expensive and disproportionate to the problem. This is a policy matter about how we run a safe and efficient industry, to be determined by Ministers and Parliament, not one for a handful of judges making a decision that either turns on a fine legal point, or where they determine the policy but dress it up to look like the former.
If the Minister decided that at some point in the near future all notifications would have to be made using the ESDAL system only, I would not have a fundamental objection. Obviously, it could be fatal to Cascade’s AbHaulier system, and there may well be strong objections from industry. We would also have to recognise that it would be a slightly Stalinist intervention that would tend to stifle innovation because ESDAL and AbHaulier are currently competing products.
However, there may be another way around this. It might be possible for competing solutions such as AbHaulier to automatically send the necessary data to ESDAL so that the notifiable authorities can still access and prioritise notifications online using the ESDAL system. My proposed new subsection 4(a) about data sentence transfer was drafted before I knew that notifiable authorities benefited from ESDAL functionality, so it is not ideal but does point to a solution for the future.
I am sure that my noble friend would like to reach for the “do nothing” option, but it has dangers. Many highways and bridge authorities use a Cascade commercial software package called AbLoads to manage the abnormal load notifications that they receive. My fourth question is: would a highways or bridge authority be able to state that they do not accept an email notification generated by ESDAL, or anything else, and that operators must use that operator’s online system, which could be a mixture of AbLoads and AbHaulier, or does ESDAL have some special status? If so, what is it?
In conclusion, Merseyside police is to be congratulated on increasing efficiency, but what is my noble friend doing to ensure that it is not operating ultra vires? I beg to move.