Knightly Conduct
Page 75
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NO excuse is needed for returning to the subject of the Knight appeal. It has caused more perplexity than any other case for a long time, especially to hauliers. Their reason tells them that the arguments put forward by the Transport Tribunal are numerous and convincing and that the appellant did not have a leg to stand on. But they still feel, in defiance of reason, that the decision ought not to be right.
Although they may have to grin and bear it as part of the ever-growing body of case law, they are entitled to take another look at it from time to time, on the assumption that a tribunal, however highly gifted, is not infallible. No Act of Parliament specifically lays down that a Licensing Authority may or should refuse to renew an A licence because the holder has ignored his declaration of normal user. The Tribunal, in the Knight decision, have bestowed the right as the final link in a chain of reasoning based upon the licensing law that is already established. From the same given facts, it might be possible to reach an entirely different conclusion, Whether the exercise is worth carrying out in full battle order is another matter. To prove any new conclusion right, even assuming it contains no palpable flaw, it would still be necessary to take the Tribunal's decision to pieces and find out where it is wrong. Such a task is for the lawyers rather than for me, but if I were asked to unravel the Knight decision, 1 should be inclined to begin with the curious treatment of the word" conduct."
The appellant had asked for the renewal of two A licences, with normal users of which apparently not, the slightest notice had been taken, at any rate during the latter part of the currency of the licences. Among the reasons for supporting the refusal by the Licensing Authority to grant the renewal, the Tribunal include Section 6(2)(b) of the Road and Rail Traffic Act, 1933, which states that, in exercising his discretion, the Licensing Authority shall have regard "to the previous conduct of the applicant in the capacity of a carrier of goods."
Appellant's Behaviour
The Tribunal make amply clear what they think of the conduct of the appellant in the Knight case. It is " flagrant," they say, and "unaccompanied by any mitigating circumstances," and they find difficulty in imagining " any previous• conduct more obviously relevant than conduct of the sort under discussion."
'Perhaps the Tribunal have allowed their anger to get the better of their judgment. The word " conduct " has many shades of meaning, and it is hard to suppose that the legislators in 1953 had in mind the gloss adopted by the Tribunal. In the wider sense of the word, almost any action by a haulier could be regarded as part of his conduct. If he cuts his rates, or lets his vehicles get shabby, or bullies his drivers, or is generally inefficient, he may be in danger of losing his business, but surely not his licence. On the other hand, if he flouts the law on drivers' wages, drivers' hours, speed limits or vehicle maintenance, he should expect the Licensing Authority to. take notice of such conduct when the licence comes up for renewal.
There must be some limit to the kind of conduct that the Licensing Authority is entitled to consider. The sensible dividing line would appear to be that drawn by the law. Conduct in this sense may be thought of as the opposite to misconduct. Only the operator who infringes the law to any really important degree ought to have fear of the arbitrary refusal of his renewal application.
On this interpretation, the. conduct of the appellant in the Knight case should just—and perhaps only just—have escaped the censure of the Tribunal. However regrettable his behaviour, he had not broken the law. He had kept within the 25-mile limit until it was lifted at the end of 1954. As an A-licence holder, he was thereafter entitled to carry any goods anywhere, whatever his declaration of normal user.
If a dictionary of transport law has to be compiled-and I have made a beginning with my attempt to define conduct "—the word " licence " must obviously he included. The legislators of 1933 even made some attempt at a definition themselves, It meant, they said, "a licence granted under this part of this Act." This does not take us very far. We are again forced back upon our own idea of what the word is intended to cover.
Temporary Restrictions
A licence gives liberty or permission to do certain things. Among the privileges conferred by the A licence is the right to carry any goods anywhere for hire or reward. Except for the temporary restriction to a radius of 25 miles imposed by the Transport Act, 1947—and except for Section 9(4) of the Transport Act, 1953, to which t refer below—there is no legislation whatever to allow conditions to be imposed either upon the goods to be carried or the area within which they are to be carried. The appellant in the Knight case was, therefore, acting perfectly within his rights. He ran the risk of losing his licence at renewal time, but not on the grounds, or accompanied by the censure, liberally supplied in both particulars by the Transport Tribunal.
The danger, of which the appellant may have been well aware, was that he would be compelled to revise his declaration of normal user so radically when the time came for seeking renewal that he would be bound to attract objections. An operator who does this is in a position little different from that of a newcomer, except that no doubt he has customers already giving him traffic, who would be prepared to support his application. He would be helped also by Section 9(3)ta) of the 1953 Act, which transfers the onus of proof from the applicant to the objector. Once he had established his new normal user, he would not need to be in so much fear of Section 9(4) of the same Act, the notorious provision giving the Licensing Authority power to suspend or revoke a licence if the holder made any false statement of intention or expectation in order to get it.
Section 9(4) was not relevant to the Knight case. If it had been, it would have given the Tribunal the unanswerable argument for which they seemed to be so desperately searching. Where Section 9(4) applies, it may he that the declaration of normal user will be regarded as a "statement of intention," and too great a deviation from it could he brought within the definition of " condlict " that I have formulated. It may even be that the main purpose of Section 9(4) was to do just this. If so, the Section represents a permanent encroachment on the unrestricted freedom of the A licence, and it would effectively repair whatever threads my disquisition on Knightly conduct may have unravelled from the Transport Tribunal's decision. Not that this makes any difference to the question of whether or not the decision was a had one. ,