Good repute — defined
How important is it when an operator fails to provide relevant information when required, or when promises are broken? And doesn’t everyone get things wrong from time to time? Why should operators be singled out for special attention?
Much has been written on good repute and all operators should be familiar with the Senior Traffic Commissioner’s Statutory Document No. 1 — Good Repute and Fitness (the present updated edition is 36 pages long and refers to repute on more than 50 occasions). Any operator who has not at least looked through the guidance to get their bearings ought to do so sooner rather than later. Operators need to know the game that they are in, and know that the competent and lawful running of an HGV operation can be very hard work. The guidance is written for them and is easily accessible at no charge at www.gov.uk.
The concept of good repute has no statutory definition; convictions can require a finding that an operator is no longer of good repute but the concept’s boundaries are far reaching and can encompass:
- road transport offences
- previous orders for revocation curtailment or suspension of previous linked licences
- previous adverse history on the current Operator’s Licence (O-licence) to include warnings and any public inquiry history
- fixed penalty notices
- bankruptcy, sequestration, administration or liquidation cases
- avoidance of debts (“phoenix” or “front” applications)
- late payments and non-payment of court orders, fines and/or fixed penalty notices
- DVSA or OTC inability to contact an operator
- abusive behaviour or non-co-operation towards enforcement officers and/or members of OTC staff
- failure to notify material and relevant changes
- failure by a transport manager continuously and effectively to manage the road transport undertaking’s operations
- unauthorised use of a place as an operating centre
- failure to fulfil a licence undertaking or comply with a condition
- the operator no longer being professionally competent or able to show the “availability of sufficient finance”.
As if this was not a sufficiently wide range, the Senior Traffic Commissioner has also warned that “Other conduct, such as a failure to heed instructions from enforcement agencies or police officers, attempts to circumvent the licensing system, recurring civil penalties, enforcement notices and breaches of other enforcement regimes such as the Home Office code of practice on preventing clandestine entrants, will also have a serious impact on repute”.
The real (regulatory) world?
The road transport regulatory regime is underpinned by the concept of trust. Operators are expected — and trusted — to know the laws that apply to their operations, to have effective systems in place to ensure compliance, to record the systems properly, to check to ensure that the systems remain effective and to record those checks. How could a regulatory regime designed to ensure safe vehicles and fair competition be otherwise?
When an operator comes into the public inquiry room there will be a plaque with the Traffic Commissioner’s name on it. Imagine for a moment that in place of the name there was a quip instead: “Don’t underestimate me. I know more than I say, think more than I speak and notice more than you realise!”
Honesty and integrity
At public inquiry, Traffic Commissioners ask themselves questions such as — “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?” and, in short, “do I trust the operator in front of me?”
For the answers to be yes (and the survival of an O-licence, to say nothing of the operator’s and any transport manager’s good repute, will likely depend upon those answers), the Traffic Commissioner needs to believe that the operator is being honest (ie that integrity is intact and that the operator is trustworthy) and that the operator is competent (in the sense that the operator actually knows what needs to be done and how to do it, and how all the necessary work should be recorded).
With a nod to the former Business Secretary, Vince Cable, road transport operators (as opposed to politicians) are “plumbers not priests”. Road transport is a practical and sometimes dirty business full of compromise and driven by the need to deliver loads safely and on time. It is much less about pontificating and making endless excuses than about getting things done. Traffic Commissioners know this very well and they spend their lives assessing operators before them, mindful of the practical world in which operators and their drivers must make their living. They are not priests. They do not demand pious perfection. But they do need to know that they can do business (in a regulatory sense) with those who come before them.
Operators who appear at public inquiry have usually got things wrong, even though they will likely have got other things right (hence the vital importance of a Traffic Commissioner carrying out a balancing exercise to weigh the pluses and minuses of each case against one another). That things have gone wrong is not a bar to persuading a Traffic Commissioner to allow an operator to continue operating.
Telling lies about what one has done, or believing that being economical with the truth is the best strategy (leaving aside for a moment the facts that to do so is wrong and very often stupid) opens the door to the very worst sanctions. For a sense of perspective, operators might ask themselves how they would respond to a driver or an engineer who failed to do something properly, putting the safety of others at risk as a result and then lied about it. How many “second chances” would such a person deserve?
Even knowing this, operators are often tempted not to admit wrongdoing believing that if they do so they will sign their own O-licence death warrant. Anecdotally, the reverse is true. A willingness to take responsibility, “come clean” about the problems that an operator is trying to address and volunteering trouble that might not ever come to the attention of the Traffic Commissioner signals a genuine desire not to conceal, obfuscate, or lie. It is also often the fastest and most compelling means of persuading a Traffic Commissioner that they can be, and should be, trusted to comply in future.
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