Consultation outcome

Operation Brock: removing sunset clauses and provisions for EU Exit and COVID-19 pandemic from existing traffic management legislation

Updated 9 August 2021

Introduction

This consultation seeks views on the proposed updating and amendment of 3 statutory instruments (SIs) underpinning traffic management contingency plans to mitigate traffic disruption in Kent, known as Operation Brock.

Operation Brock is part of a set of multi-agency response plans managed by the Kent Resilience Forum (KRF) to keep traffic moving on the M20 during periods of severe cross-Channel disruption, caused by events such as industrial action or severe weather. If activated it operates on a temporary basis to limit traffic delays through a carefully managed route and queuing system. Other KRF plans also address the welfare requirements of lorry drivers and, if the circumstances are severe, passenger traffic, too.

The Operation Brock legislation was first put in place in 2019 in preparation for a potential no-deal departure from the European Union (EU), updated in 2020 in preparation for the end of the EU transition period, and again in 2021 in response to the coronavirus (COVID-19) pandemic.

The current legislation, which expires on 31 October 2021, includes provisions requiring heavy commercial vehicles (HCVs) (any goods vehicle that has an operating weight exceeding 7.5 tonnes) heading for Dover and the Channel Tunnel (the Short Straits) to proceed only by designated routes and enables penalties to be applied to any vehicles breaching those requirements.

Specific to the UK’s departure from the EU, it also includes provisions requiring hauliers to ensure they are border-ready before setting off for the Short Straits, including possession of a Kent Access Permit (KAP) and powers enabling the prioritisation of HCVs carrying a strictly limited range of goods to pass queues should significant disruption occur.

Finally, it contains provisions (never exercised) enabling the introduction of a legal requirement for hauliers to have proof of a negative COVID-19 test result before entering Kent.

In the instances that Operation Brock has been deployed to date, it has successfully managed to limit the effects of traffic disruption to freight traffic and other road users, both on the main motorway and local road network.

This consultation puts forward proposals to remove provisions relating to the end of the EU transition period and COVID-19 – in no small part thanks to international HCV drivers’ consistently high levels of border readiness.

It also proposes to make permanent the remaining provisions relating to traffic management, so that Operation Brock can continue to be an effective traffic management response plan in the future. As ever, it will only be used in the event of significant disruption at the Short Straits crossings.

Your views are sought on the detail of the policy approach to the refreshed legislation. 

Background

Managing HCV congestion in Kent

The Short Straits routes (via the Port of Dover and the Channel Tunnel) for exporting goods from the United Kingdom (UK) to mainland Europe and beyond carry very high volumes of HCVs. Any disruption to the routes – caused, for example, by industrial action or weather events – can swiftly lead to delays at the ports and Eurotunnel terminals. If delays on the cross-Channel routes are severe enough this can lead to significant queues of HCVs on the roads leading to the Port of Dover and Eurotunnel.

The Kent Resilience Forum’s (KRF) Operation Fennel plans are a coordinated multi-agency response to such situations of cross-Channel travel disruption, when capacity for HCVs to leave the UK through the Port of Dover or the Channel Tunnel is significantly restricted. Operation Brock forms part of those plans and is designed to keep the M20 motorway in Kent open in both directions, with access to junctions, even in periods of severe and protracted disruption. The plans are temporary and only deployed if the disruption to traffic flow at the Short Straits ports is significant enough to severely affect the Kent road network.

If deemed necessary, HCVs that are intending to cross the Channel can be temporarily held on the coastbound carriageway of the M20 between junctions 8 and 9 while congestion at the Port of Dover or Eurotunnel clears. The London-bound carriageway of this section of the M20 is split into 2 by a temporary barrier, creating a contraflow allowing other traffic to flow in both directions.

For these plans to work, legislation is needed to ensure that HCVs travelling across the Channel follow the routes prescribed by the Operation Fennel plan and do not use local roads to ‘rat run’ around queues. This would cause disruption to these local roads with knock-on impacts on local businesses and residents. Powers provided by the legislation are also needed to ensure that international HCVs using the M20 join the queues in Operation Brock when it is in place rather than by-passing them via the contraflow.

The plans are, therefore, underpinned by legislation in the form of SIs and temporary traffic regulation orders for the strategic road network and local road network, first introduced in 2019. These are designed to keep goods vehicles weighing 7.5 tonnes and over on designated routes to the ports only if Operation Brock is activated. These restrictions do not apply to vans and light goods vehicles (LGVs) under 7.5 tonnes.

The existing legislation has successfully helped to minimise disruption at the ports and in Kent when Operation Brock has needed to be activated. By requiring all HCVs crossing the Short Straits to come prepared with the correct documentation, consistently high levels of border readiness were exhibited, which minimised traffic disruption in Kent and kept essential trade flowing.

Operation Brock has to date provided an effective means of minimising disruption and had a positive impact on local residents, businesses and the local road network. The haulage industry and, as a result, trade across the UK, has also benefited from this.

Existing legislation

The legislation underpinning Operation Brock is in 3 parts (The Heavy Commercial Vehicles in Kent Orders) and has been updated several times to reflect the incidents Operation Brock has been designed to respond to. Such incidents included contingency preparations for the end of the EU transition period following the UK’s exit from the EU, as well as for implementing COVID-19 testing requirements for international hauliers.

All 3 orders had an original sunset clause date of 31 December 2020. This was later extended to 31 October 2021, so that the legislation remained valid for any potential traffic disruption in Kent as a result of the end of the EU transition period. Summaries of the amendments to each of the orders referred to in this consultation can be found below.

The Heavy Commercial Vehicles in Kent (No. 1) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No. 1) (Amendment) Order 2020)

This order confers powers on traffic officers to allow them to identify cross-Channel HCVs and control their movements in Kent. It also sets the amount of the financial penalty deposit for failing to comply with a traffic officer exercising their powers or for breaching the restrictions introduced by the No. 2 and No. 3 orders.

The Heavy Commercial Vehicles in Kent (No. 2) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No. 2) (Amendment) Order 2020)

The No. 2 Order restricts access to the local road network in Kent by setting out approved routes that a cross-Channel HCV can take to the ports when Operation Brock is in force. For example, a cross-Channel HCV would be required to have a valid KAP when using the road network in Kent. East Kent-based cross-Channel HCV drivers holding a local haulier permit (LHP) are permitted to use local roads. Without this permit, they would otherwise be restricted to using the motorway network and its associated traffic management system.

The Heavy Commercial Vehicles in Kent (No. 3) Order 2019 (as amended by the Heavy Commercial Vehicles in Kent (No. 3) (Amendment) Order 2020 and the Heavy Commercial Vehicles in Kent (No. 3) (Amendment) Order 2021

The No. 3 Order regulates access to the M20 motorway between junctions 8 and 13 and prohibits HCVs using the contraflow on the London-bound carriageway between junctions 8 and 9 of the M20 when Operation Brock is deployed, among other measures. It also facilitates more effective enforcement against non-compliant drivers and sets the amount of the fixed penalty for relevant offences under the SIs.

The 2020 amendments to the No. 3 Order introduced the requirement to obtain a KAP by making use of the online Check an HGV is Ready to Cross the Border service. Under these regulations, drivers were required to submit their vehicle registration number (VRN) and port of disembarkation in the EU, and to make a short series of self-declarations to confirm the appropriate border documentation was in place and carried with the goods.

Those deemed border-ready would be issued with a KAP and advised by the web service to continue their journey. Those deemed unready would be told they were missing documentation and should not take the goods until the trader had provided all the relevant documentation.

The 2020 amendments also included a contingency measure for a small number of HCVs carrying specific live or fresh seafood products for human consumption and day-old chicks to bypass the Operation Brock traffic management queuing system to allow them to get to EU markets in time. This provision has not been utilised to date.

Further amendments to the No. 3 2019 Order were made to clarify that the provision for hauliers based in Kent to apply for an LHP applied only to hauliers based in East Kent if they also held a standard international O licence.

The Heavy Commercial Vehicles in Kent (No. 3) (Amendment) Order 2021

As a result of the ongoing COVID-19 pandemic and additional requirements put in place by the French government, 2 new provisions were introduced in January 2021. The Expedited Return Scheme, if activated, would allow certain vehicles to use the contraflow in the event of significant queueing to mitigate any potential disruption to the nation’s food supply.

In response to the French government requiring proof of a negative COVID-19 test result before entering France, a provision was also included to require hauliers to obtain a negative COVID-19 test before entering Kent, to mitigate any possible congestion towards the ports.

Neither of these provisions has been activated.

Proposal to revise Operation Brock for the long-term: traffic management

Existing arrangements

Under the existing legislation, each phase of Operation Brock uses specific routes and locations. Only once, and if, Operation Brock is activated, all Europe-bound goods vehicles exceeding 7.5 tonnes going to Eurotunnel or the Port of Dover would be required to follow the Operation Brock routes and comply with any traffic signs and instructions.

For the relevant authorities to control these instructions, HCV drivers who do not follow the instructions provided, or try to use alternative routes, such as local roads, to the ports, can be stopped by enforcement officers and subjected to a £300 fine.

Under the existing SIs, the fines are levied using fixed penalty notices for UK HCV drivers, and financial deposit notices for foreign drivers. Fines would normally be on-the-spot, though UK drivers have up to 28 days to pay. If a driver refuses to pay, their HCV could be impounded.

Enforcement is against the driver, because the offence of ignoring the Operation Brock contraflow or other traffic directions would have been committed by the driver of the vehicle. An HCV driver can be liable for multiple fines if they had contravened multiple requirements, for example, by trying to evade the Brock queues multiple times. These fines only apply if Operation Brock has been activated.

Sunset clauses

There may be some changes to the detail of the KRF’s traffic management plan as the circumstances have changed since the end of the EU transition period (31 December 2020), and so the content of the SIs may need to be updated to reflect this.

More details of any such revisions to the traffic management plan will be made available in due course. We would, of course, undertake wide-reaching communications activity to ensure UK domestic and international hauliers were informed of any changes. As with the existing regulations, vans and LGVs will not be subject to these restrictions.

It is our intention to continue to issue fines for failure to comply with the traffic restrictions enabled by the SIs when Operation Brock is activated. We believe that retaining the enforcement measures set out above, including the £300 fine, would act as a suitable punishment and deterrent.

Setting a higher fine would break precedence with what has been done previously under the relevant primary legislation (the Road Traffic Offenders Act 1988).

The overall intent of this legislative update is to retain those measures that underpin the KRF’s long-term plans to manage the types of disruption to cross-Channel traffic that have occurred in the past and may occur in the future (for example, because of bad weather or other unforeseeable events). Reflecting the need for long-term stability in Kent traffic management arrangements, it is therefore proposed that the current 31 October 2021 ‘sunset clauses’ (that is, expiration dates) be removed.

Removing the sunset clauses will provide the KRF with the ability to respond to circumstances appropriately and swiftly, minimising any disruption. The response plans are for temporary use and only implemented if strictly necessary to minimise traffic congestion in Kent.

Consultation question: Do you agree with the proposal to remove the sunset clauses, putting Operation Brock onto a sustainable long-term footing? If not, why not?

Proposal to revise Operation Brock for the long-term: removing provisions relating to the end of the EU transition period and COVID-19

Removing the requirement for a KAP

The existing SIs include a provision to make it a legal requirement for an HCV driver travelling through Kent to the Short Straits to have a valid KAP, which can be obtained through the Check an HGV service. Any hauliers not meeting the requirement risk a £300 fine.

In certain circumstances involving border readiness checks in Kent, drivers would also have needed to get a cross-Channel permit – more commonly referred to as a ‘Brock permit’ – to access the ports.

These permit arrangements were intended as temporary measures to avoid additional delays at the border, by ensuring HCV drivers had the correct paperwork before setting off and allowing them to move quickly to and through the Short Straits.

This requirement was stood down on 20 April 2021, as freight volumes returned to normal levels and HCV drivers’ border readiness for new customs requirements was high. The removal of the KAP requirement has meant less paperwork for hauliers, making it quicker and easier to get to Kent to cross the border, further supporting the already smooth flow of goods from the UK into Europe.

Given the consistently high levels of border readiness exhibited by hauliers since the end of the EU transition period, we propose removing from the SIs the provisions relating to the KAP and cross-Channel permits.

Consultation question: Do you agree with the proposal to amend the SIs to remove requirements relating to KAPs and cross-Channel (Brock) permits? If not, why not?

Removing provisions for prioritisation of certain commodities and for the Expedited Return Scheme

The current SIs offer a contingency plan that provides HCVs carrying certain commodities the opportunity to bypass part of the Operation Brock system if significant delays occur. The goods eligible for prioritisation are restricted to single loads of live or fresh seafood products for human consumption and day-old chicks. Prioritisation of these goods requires use of the KAP, which was discontinued in April 2021.

In January 2021, further amendments were made to introduce provisions for the Expedited Return Scheme (ERS), which allows certain empty HCVs to use the contraflow in the event of significant disruption at the border. The policy intent here was to avoid disruption to food supplies by ensuring that HCVs used for those cargoes could return to the EU to pick up fresh loads with minimal delay. Neither of the schemes has been required.

After working closely with the Department for Environment, Food and Rural Affairs (Defra), we are proposing that the ERS provisions will continue to be a contingency measure available until 31 October 2021 under the existing legislation, but not extended with this set of amendments to the SIs.

The provisions were designed for the specific circumstances of the end of the EU transition period and in the context of food supply disruption caused by closure of the border in December 2020. We recognise there is no longer such a compelling case for prioritisation of some goods and not others at this point, and that current provisions may not be readily applicable to future unscheduled disruption events. The government will, however, keep future disruption risks under close review and take action as necessary to safeguard key supply chains, including through seeking further amendments to legislation if required.

Consultation question: Do you agree with the proposal to amend the SIs to remove provisions relating to prioritisation of certain commodities and the ERS? If not, why not?

Removing COVID-19 testing provisions

In January 2021, we amended the SIs to include a contingency provision to make it a legal requirement for an HCV driver leaving the UK via the Channel Tunnel at Folkestone or the Port of Dover (the Short Straits) driving on the M20 or M2 to be in possession of proof of a negative COVID-19 test result, timed at no more than 72 hours before their expected departure time from Dover or the Channel Tunnel..

The intention behind the provision was to provide a means of requiring ‘upstreaming’ of haulier COVID-19 testing to reduce potentially overwhelming pressure on testing sites in Kent. In the event, the powers were not required as sufficient ‘upstreaming’ occurred without the need for legislative intervention. The network of testing sites HMG has put in place around the strategic road network continues to operate well.

We propose that this provision is therefore no longer required and does not need to be reinstated after it expires on 31 October 2021. The government will continue to monitor international border COVID-19 testing requirements as the pandemic develops and consider legislative requirements relating to traffic management accordingly.

Consultation question: Do you agree with the proposal to amend the SIs to remove contingency provisions relating to the requirement for HCV drivers leaving the UK via the Short Straits to be in possession of a negative COVID-19 test result before entering Kent via the M2 or M20? If not, why not?

Retaining Local Haulier Permits

The 2020 amendments to the Brock SIs allowed HCVs based at operating centres in East Kent and Faversham to use local roads rather than the prescribed Operation Brock routes, without joining the back of the Operation Brock traffic management queue. These hauliers were eligible to apply for Local Haulier Permits (LHPs) issued by Kent County Council.

We are proposing to retain the LHPs in the amended SIs, to ensure that local hauliers can continue to operate in the event of disruption without incurring additional costs and delays. They will only be operational when Operation Brock is active.

Existing holders of a local haulier permit would retain their existing physical permits. As under the previous Operation Brock SIs, we propose that Kent County Council will deliver any new permits that are required.

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

Other considerations

Industry engagement

We will continue our programme of engagement activity aimed at helping the road haulage industry to adapt to the new trading relationship with the EU. This includes delivery of tailored direct engagement with industry bodies at EU industry days (facilitated by the Cabinet Office’s Border and Protocol Delivery Group and the Department for International Trade), as well as industry stakeholder events, DfT exhibition stands at physical and virtual events across the EU, and presentations to high-volume EU firms co-ordinated by ferry operators and local resilience forums. We will also coordinate direct engagement with the biggest EU haulage companies through HMRC’s EU engagement plan, which we are already supporting.

In addition, DfT will use its network of information and advice sites, staffed by multilingual teams, to continue to provide tailored guidance and support to international hauliers on UK import and export procedures and traffic management arrangements. More than 200,000 hauliers have visited these sites since November 2020 and we intend to build on this success to provide hauliers with the information they need at locations convenient to them over the rest of the year.

DfT will also update the Haulier Handbook, the next edition of which is being published in 14 languages this summer. The handbook will provide international hauliers with new guidance on UK customs and regulatory requirements for importing goods into Great Britain.

Domestic journeys

These regulations relate specifically to HCVs crossing the Short Straits, not those making a journey to, from or within Kent. The SIs and traffic management measures do not apply to HCVs making domestic journeys to or within Kent; such vehicles would continue not to need to comply with the Operation Brock prescribed routes.

Consultation question: Do you have any other comments?

How to respond

The consultation period began on 26 May 2021 and will run until midnight of 20 June 2021. Please ensure that your response reaches us before the closing date. Further copies of this consultation document are available, or you can contact OperationBrockSIs@dft.gov.uk for alternative formats, such as Braille and audio CD, for example.

Send consultation responses to:

Operation Brock SIs Team
Department for Transport
Great Minster House
33 Horseferry Rd
London SW1P 4DR
Telephone: 0300 330 3000

Alternatively, you can respond by email to OperationBrockSIs@dft.gov.uk.

When responding, state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of a larger organisation, 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, contact us.

What happens next

A summary of responses, including the next steps, will be published within 3 months of the consultation closing. Paper copies will be available on request.

If you have questions about this consultation, contact:

Operation Brock SIs Team
Department for Transport
Great Minster House
33 Horseferry Rd
London SW1P 4DR
Telephone: 0300 330 3000

Or email: OperationBrockSIs@dft.gov.uk

Annex A: impact assessment

A full consultation stage impact assessment has not been conducted, as the equivalent annual net direct costs to business have been assessed to fall within the threshold for a de minimus assessment.

Annex B: full list of consultation questions

Personal and organisation details

Your name and email address (used for contact details only)

Are you responding as an individual or as an organisation?

You live in: England, Wales, Northern Ireland, Scotland or abroad?

What is the name of your organisation?

How large is your organisation: 1 to 250 people or more than 250 people?

What goods do you export?

Removal of sunset clauses

Do you agree with the proposal to remove the sunset clauses, putting Operation Brock onto a sustainable long-term footing? If not, why not?

Removal of KAP and cross-Channel permits

Do you agree with the proposal to amend the SIs to remove requirements relating to the KAP and cross-Channel (Brock) permits? If not, why not?

Removal of prioritisation of certain commodities and the Expedited Return Scheme provisions

Do you agree with the proposal to amend the SIs to remove provisions relating to prioritisation of certain commodities and the ERS? If not, why not?

Removal of proof of negative COVID-19 testing requirement

Consultation question: Do you agree with the proposal to amend the SIs to remove contingency provisions relating to the requirement for HCV drivers leaving the UK via the Short Straits to be in possession of a negative COVID-19 test result before entering Kent via the M2 or M20? If not, why not?

Retain Local Haulier Permits for hauliers based in Kent

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

Final comments

Do you have any other comments?

Annex C: consultation principles

The consultation is being conducted in line with the government’s key consultation principles.

If you have any comments about the consultation process, contact:

Consultation coordinator
Department for Transport
Zone 1/29 Great Minster House
London SW1P 4DR

Alternatively, you can email consultation@dft.gov.uk

Freedom of information

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, among 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 Department for Transport (DfT).

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.

Data protection

DfT is carrying out this consultation to gather evidence on the policies on and our ambitions for the Kent traffic management SIs. This consultation and the processing of personal data that it entails is necessary for the exercise of our functions as a government department. If your answers contain any information that allows you to be identified, DfT will, under data protection law, be the controller for this information.

As part of this consultation, we’re asking for your name and email address. This is in case we need to ask you follow-up questions about any of your responses. You do not have to provide us with this personal information if you do not so wish. If you do provide it, we will use it only for the purpose of asking follow-up questions. We are also asking questions about your location and type of business. This is so we can conduct regional and sectoral analysis of the responses.

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.

To receive this information by telephone or post, contact us on 0300 330 3000 or write to:

Data protection officer
Department for Transport
Ashdown House
Sedlescombe Road North
St Leonards-on-Sea TN37 7GA

Your information will be kept securely on a secure IT system within DfT with limited staff access and destroyed within 12 months after the consultation has been completed.