The Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012

Made: 28th June 2012

Coming into operation: 1st July 2012

The Department of the Environment makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 .

The Department of the Environment has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the carriage of goods by road.

In accordance with section 57(11) of the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 the Department has consulted such representative organisations as it thinks fit.

Citation, commencement and interpretation

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• (1) These Regulations may be cited as the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012 and shall come into operation on 1st July 2012.

• (2) The Interpretation Act (Northern Ireland) 1954 shall apply to these Regulations as it applies to an Act of the Assembly.

• (3) In these Regulations—

• “the 2010 Act” means the Goods Vehicles (Licensing of Operators) Act (Northern Ireland) 2010 ;

• “the Department” means the Department for Infrastructure;

• “ the 2010 Act ” means Regulation (EC) No. 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC;

• “transport service” means the use of a goods vehicle for which an operator’s licence is required under section 1 of the 2010 Act (operators’ licences);

• “other relevant person” means in the case of an individual, an employee or agent of the individual and in the case of a company means any officer, agent or employee of the company.

• (4) Expressions used in Regulation 1071/2009 have the same meaning when used in these Regulations.

Competent authority

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Authorisations to pursue the occupation of road transport operator

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Notification of changes to data

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Good repute

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• (1) In determining whether an individual is of good repute under section 12A(2)(b) of the 2010 Act or regulation 13A(1)(b) , the Department may have regard to any matter but shall, in particular, have regard to—

• (a) any convictions or penalties incurred by the individual or any other relevant person; and

• (b) any other information in its possession which appears to the Department to relate to the individual's fitness to hold a licence.

• (2) In determining whether a company is of good repute under section 12A(2)(b) of the 2010 Act , the Department shall have regard to all the material evidence including, in particular—

• (a) any convictions or penalties incurred by the company, company employees or any other relevant person; and

• (b) any other information in its possession as to the previous conduct of the company or any other relevant person if that conduct appears to the Department to relate to the company's fitness to hold a licence.

• (3) For the purposes of these Regulations, any convictions or penalties incurred by any person include —

• (a) any conviction or penalty incurred by that person of an offence under the law of any part of the United Kingdom or any corresponding offence under the law of any country or territory outside the United Kingdom;

• (b) any conviction of that person of a serious offence within the meaning given in regulation 7; and

• (c) any conviction of that person of a road transport offence within the meaning given in regulation 8.

Determination that an individual is not of good repute

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Without prejudice to the generality of the Department's power under regulation 5 to determine that a person is not of good repute, the Department shall determine that an individual is not of good repute if that individual has—

• (a) been convicted of a serious offence; or

• (b) been convicted of road transport offences.

Serious Offences

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• (1) A person has a conviction of a “serious offence” if—

• (a) that person has been convicted of any offence under the law of any part of the United Kingdom or under the law of a country or territory outside the United Kingdom; and

• (b) on such conviction there was imposed on that person for that offence a punishment falling within paragraph (2).

• (2) The punishments are—

• (a) a sentence of imprisonment for a term exceeding three months;

• (b) a fine exceeding level 4 on the standard scale;

• (c) a community service order or community payback order requiring a person to perform work for more than 60 hours; and

• (d) in the case of an offence committed under the law of a country or territory outside the United Kingdom, any punishment corresponding to those mentioned in sub-paragraphs (a) to (c).

• (3) In paragraph (2) —

• (a) the reference to a sentence of imprisonment includes a reference to any form of custodial sentence or order, other than one imposed under the enactments relating to mental health;

• (b) “community service order” means an order under Article 13 of the Criminal Justice (Northern Ireland) Order 1996 ; and

• (c) “community payback order” means an order under section 227A of the Criminal Procedure (Scotland) Act 1995 .

Road Transport offences

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“Road transport offence” means—

• (a) an offence under the law of any part of the United Kingdom relating to road transport including, in particular—

• (i) an offence relating to drivers' hours of work or rest periods, the weights or dimensions of commercial vehicles, road or vehicle safety or the protection of the environment; and

• (ii) any other offence concerning professional liability;

• (b) any corresponding offence under the law of a country or territory outside the United Kingdom.

Further provisions for the purposes of regulations 5 to 8

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• (1) For the purposes of regulations 5 to 8—

• (a) convictions which are spent for the purposes of the Rehabilitation of Offenders (Northern Ireland) Order 1978 shall be disregarded; and

• (b) the Department may also disregard an offence—

• (i) if such time as the Department thinks appropriate has elapsed since the date of the conviction; or

• (ii) if the Department, having considered the number of offences committed by a person, determines that due to specific circumstances a negative determination of good repute for the person would constitute a disproportionate response.

• (2) In determining the good repute of a transport manager under regulation 13A(1)(b) regulations 5 to 9 shall apply as they apply to an individual with the omission of the words “or any other relevant person”.

Professional Competence

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• (1) An individual shall be regarded as professionally competent under section 12A(3)(a)(i) of the 2010 Act or regulation 13A(1)(c) if, and only if—

• (a) that person has demonstrated that they possess the requisite skills by passing a written examination organised by an approved body and is the holder of a certificate to that effect issued by that body; or

• (b) that person is the holder of any other certificate of competence, diploma or other qualification recognised for the purposes of this paragraph by the Department.

• (2) The approved body may exempt an individual from certain parts of the examination mentioned in paragraph (3)(a) if the individual is the holder of a certificate of competence, diploma or other qualification which covers those parts and which is recognised for the purposes of this paragraph by the Department.

• (3) The written examination mentioned in paragraph (3)(a) may be supplemented by an oral examination organised by the approved body in the form set out in Annex I to Regulation 1071/2009.

• (4) In this regulation—

• “approved body” mentioned in paragraph (4) means—a body approved by the Secretary of State for the purposes of paragraph 13(3) of Schedule 3 to the Goods Vehicles (Licensing of Operators ) Act 1995 ; or a body approved by the Department for Infrastructure for the purposes of this regulation ; and

• “the requisite skills” means knowledge corresponding to the level of training, for either national or international transport operations as the case may be, provided for in Annex I to Regulation 1071/2009 in the subjects there listed.

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Issue of notice to transport manager

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• (1) The Department shall not make a finding that a transport manager is not of good repute unless the Department is satisfied that the transport manager has been served with a notice—

• (a) stating that the question whether the transport manager is of good repute is an issue;

• (b) setting out the nature of the allegations against the transport manager;

• (c) stating that the transport manager is entitled to make representations under this paragraph within 28 days beginning with the date on which the notice is served on them; and

• (d) stating that the transport manager is entitled to request an inquiry as provided in section 32 of the 2010 Act.

• (2) Where a transport manager makes representations under this paragraph, the Department shall consider the representations—

• (a) in considering whether or not to hold an inquiry as provided in section 32 of the 2010 Act; and

• (b) in determining whether the transport manager is of good repute.

• (3) The Department must hold an inquiry as provided in section 32 of the 2010 Act if the transport manager requests one under paragraph (1)(d).

Determinations in respect of transport managers

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• (1) In determining whether a person who is a transport manager is of good repute, the Department must consider whether a finding that the person was no longer of good repute would constitute a disproportionate response.

• (2) If the Department determines that the person is no longer of good repute, the Department must order the person to be disqualified (either indefinitely or for such period as the Department thinks fit) from acting as a transport manager.

• (3) While a disqualification under paragraph (2) is in force—

• (a) the person may not act as transport manager in relation to any operator’s licence ;

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• (4) A person in respect of whom an order has been made under paragraph (2) may appeal to the Upper Tribunal against the order.

• (5) The Department may direct that an order under paragraph (2) is not to take effect until the expiry of the time within which an appeal may be made to the Upper Tribunal against the order and, if such an appeal is made, until the appeal has been disposed of.

• (6) If the Department refuses to give a direction under paragraph (5), the person in respect of whom the order has been made may apply to the Upper Tribunal for such a direction.

• (7) Regulation 9 applies for the purposes of this regulation as it applies for the purposes of regulations 5 to 8.

Transport managers: cancellation or variation of disqualification order

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• (1) Where a disqualification order is made under regulation 15(2) the Department may, subject to paragraphs (1A) and (2), at any time cancel the order or, with the consent of the disqualified person, vary the order.

• (1A) If the disqualification order was made because the Department determined that the disqualified person ceased to be of good repute, the order may be cancelled—

• (a) not before the end of the period of one year beginning with the day on which the order was made; and

• (b) only if the disqualified person has, after the order was made—

• (i) passed the written examination referred to in regulation 11(1)(a); or

• (ii) for no less than three months undertaken training the Department considers appropriate.

• (2) When a disqualification order is made under regulation 15(2) the Department may specify measures with which the disqualified person must comply before the order can be cancelled or varied.

• (3) Measures specified under paragraph (2) may be varied—

• (a) on the application of the disqualified person; or

• (b) by the Department.

• (4) Before making a variation under paragraph (3)(b), the Department must serve a notice on the disqualified person—

• (a) stating the Department's intention to vary the measures specified under paragraph (2);

• (b) stating that the person is entitled to make representations under paragraph (5) within 28 days beginning with the date on which the notice is served on the person; and

• (c) stating that the person is entitled to request an inquiry as provided in section 32 of the 2010 Act.

• (5) Where a person makes representations under this regulation, the Department must consider the representations in deciding whether to vary the measures specified under paragraph (2).

• (6) The Department must hold an inquiry as provided in section 32 of the 2010 Act if the disqualified person requests one under paragraph (4)(c).

Amendments to the 2010 Act

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• (1) The 2010 Act is amended in accordance with paragraphs (2) to (17).

• (2) In section 1 (operators' licences) for subsection (4) substitute—

(4) In subsection (2)(b) and (c), “established”, “haulier” and “international carriage” have the same meaning as in Regulation (EC) No 1072/2009 on common rules for access to the international road haulage market.

• (3) In section 3 (temporary exemptions), omit subsection (4).

• (4) In section 11 (objections to, and representations against, issue of operators' licences)—

• (a) in subsection (1)(a), for “section 12” substitute “ sections 12A to 12E ”;

• (b) in subsection (11)—

• (i) for “section 12” substitute “ sections 12A to 12E ”;

• (ii) in paragraph (a) for “subsections (3), (5) and (6) of that section” substitute “ sections 12A, 12C and 12D ”; and

• (iii) in paragraph (b), for “subsections (4), (5) and (6) of that section” substitute “ sections 12B, 12C and 12D ”.

• (5) For section 12 substitute—