New But Normal
Page 53
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THE Old Masters had the right attitude, says poet Auden. When they painted the story of Icarus falling out of the sky, they showed the rest of the world carrying on as usual, and ignoring the tragedy on their doorstep. With the same phlegm, one imagines, most of the hauliers will continue to. drive their bargains through the traffic courts, in spite of the failure of T. Hesketh, Ltd., to make any impression on the Queen's Bench Division.. . In some ways, the interest and support aroused for the case are surprising. A successful outcome was not likely, and although it would naturally have pleased Hesketh's, its value as a-precedent was limited. Most cases that turn upon the failure by an A-licence holder to carry out his declaration of normal user will in future be capable of settlement by reference to section 9(4) of the Transport Act, 1953.
In its judgment, the High Court was much concerned with the right of the licensing.anthority and the transport tribunal to consider the previous conduct of the applicant in the capacity of a carrier of goods,"as referred to in section' 6(2) -(b) of the Road and Rail Traffic Act, 1933. From one or two remarks made by Lord Goddard, the Lord Chief Justice, it is evident that his definition of conduct in this particular context is much wider than many people may
have thought. . .
Hesketh's knight the renewal of their licence with a normal user that reverted to what it was before the limit to a radius of 25 miles imposed by the Transport Act, 1947. The North Western Deputy Licensing Authority refused the renewal on the grounds that they had not proved need. On the appeal, the tribunal came to the same decision on different grounds, namely that, during the currency of the previous licence, the vehicle had been used for traffic outside that covered by the declaration of normal user.
In carrying this traffic, Hesketh's were not breaking the law. Their conduct in pursuing their business along lines different from those they 'originally proposed was possibly rash, but to many people it may have seemed not the sort of conduct that deserved the rejection of their renewal application out of hand.
' Hypothetical Example Lord Goddard has now made it clear that this interpretation is wrong. To his Mind, the tribunal was entitled to consider all aspects of the conduct of an appellant, and not merely conduct outside the law. He went so far as to give a hypothetical -example. He saw no reason, he declared, why, if a company was unfortunate enough to employ drivers who were involved in a long series of accidents, it should not be found that its previous conduct as a carrier of goods was unsatisfactory.
This pronouncement could widen considerably the field within which licensing authorities and the 'tribunal may exercise their discretion. It would be interesting to know how -far Lord Goddard is prepared to go. Could section 6(2) (b) be invoked if an applicant's vehicles were not kept clean; or if his drivers used an excessive amount of bad language; or if he spent most of his time at the races or in the local inn; or if his secretary sat on his knee while taking dictation? Each of these practices could be the subject of censure from somebody. If Lord Goddard's interpretation is diligently pursued, one may. expect some remarkable revelations in the traffic courts over the next few months.
Whatever happens, hauliers would be well advised to go very gingerly until the situation seems more settled. To safeguard their position on renewal, they should report to the licensing authority, any change, apart from what is trivial, in the nature of their business. Where the change is very marked, they may have to apply for a new licence, with a fresh declaration of normal user, in substitution for the Old licence.
Sooner or later, as has happened with crises in the past, the road haulage industry will come to terms with the new conception of normal user. It must do its best to see that its position is not worsened, and it must not, for the sake of peace and quiet, allow fresh restrictions to be placed upon its range of activity. The road-rail negotiating committees offer the opportunity to reach agreement with possible objectors, and so smooth the way for the granting of the renewal application. Hauliers must not give way too tamely to demands made by "the other side."
Invidious Wording The somewhat invidious wording of section 9(1) of the 1953 Act tells the licensing authorities, when considering the interests of the general public, to have regard primarily to those of persons requiring facilities for transport, and only secondarily to those of persons providing the facilities. At least the haulier is not ignored in this assessment of the situation. He is shown his place, but he has his rights. He knows also that the licensing authorities are men of sense and experience, unlikely to revoke licences or refuse renewals without strong provocation.
What the licensing authorities really think about their job they are too discreet to say. The law, to which they must give at least a nod of recognition even in plain defiance of common sense, grows more and more complex, without appearing to be any the better for it. Their chief concern, the road haulage industry, remains remarkably stable, not to say stagnant. Between the end of 1947 and the end of 1956, the number of A and B licensed vehicles increased by no more than 12,000, from 148,000 to 160,000. The vehicles on average have a higher carrying capacity, and the nine years have been a difficult period, but the, volume of traffic available for transport has gone up considerably more rapidly than the capacity of public carriers by road.
Perhaps the licensing authorities do not find it disconcerting that the more the road haulage industry changes, the more it is the same as before. If the industry is to be kept down to such a slow rate of increase, however, there is something to be said for giving what vehicles there are the maximum of freedom. This involves preserving, as far as possible, the distinction between the A and the B licence. The old conception, the accuracy of which is being more and more undermined, was that the A licence holder had the right to carry what he liked where he liked, whereas the B licence holder was restricted to specified commodities, specified areas, specified customers, or various combinations of all three. If the traffic court objectors, chiefly the Commission, succeed in extracting the maximum advantage from the declaration of normal user that the A licence holder has to make, they will not merely blur the distinction between the two types of licence, but make them of the same practical value.
The old days when there was a chance of getting an A licence with "general goods Great Britain " as the normal user appear to have gone for good, unless hauliers can persuade Parliament to make the law conform to what it was once assumed to be. •