CONSEQUENCES
Page 67
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REACT1ONS have been slow in coming from traders and hauliers on the judgments of the Court of Appeal in the cases of Merchandise Transport, Ltd., and Arnold Transport (Rochester), Ltd. By delaying their announcement until the week before Bank Holiday, the Court made sure of at least a month when many people would be more concerned with their leisure than their business. By the end of August the cases will have become familiar objects in the licensing landscape and operators will be wondering how they ever came to think the law could be otherwise than as laid down in the two decisions.
There are other factors that tend to make comment difficult. The even-'handed justice with which the Court rules against the Transport Tribunal in one case and for them in the other, allows each side to claim a partial victory. Whatever the result, it would not in itself have resolved the questions of operators. They would have needed a period of several months to observe the effect in the pragmatical atmosphere of the traffic courts. In the circumstances as they are, the testing time may have to be even longer. In the end, operators might still find that the Court have merely closed one of two doors leading to the same goal.
ALTHOUGH the Court made clear their dislike of too rigid a body of licensing case law, the lawyers and advocates will have as much to do as ever. No doubt there are sharp minds already hard at work sifting the two decisions and discovering ways of turning them to advantage. This is unavoidable. There is a romantic attraction in the idea sometimes expressed that operators and licensing authority ought to be able to chat informally and reach sensible agreements without the interference of lawyers or of appeal tribunals. But it must remain a pleasant theme for idylls and for dreaming. The licensing structure must have a legal basis with all the consequences involved.
At least operators need no longer feel that they are in the inexorable grip of an iron system from which there is no escape and no means of appealing to a higher authority or to public opinion. Licensing procedure will never again be quite the same. The future is all the more interesting because there are so many questions to which it alone holds the answers. An unusually close watch will be kept on what happens when the traffic courts resume their activities after the holidays.
WE may expect to hear much more of one important and familiar aspect of transport that has seldom entered into traffic court discussions. The two decisions have brought into the light of day the return load, which for many years has been interred deep below the licensing system. Its significance has not been diminished by the conspiracy of silence surrounding it. It is the rock upon which the prosperity of the road haulage industry has been built—and upon which from time to time some road haulage businesses have foundered. It was the lure of the return load that inspired the Merchandise and Arnold applications and started the long and expensive process that has now ended in the Court of Appeal.
The trader wishing to enter the haulage business will no longer suppose that outward journeys with his own traffic provide sufficient evidence to justify the carriage of return loads. His chance of an A licence would seem to be slight, but he might have better fortune with an application for a B licence cast in a reasonably moderate mould. In either case he would be called upon to prove his point. The habit of testing the need for return loads will grow upon licensing authorities and they will soon find themselves applying the test indiscriminately. If they were reluctant to do so, they would soon be coerced by the volume of objections likely to be received from distant operators. No applicant who wished to avoid returning to his base empty would be exempt from attack by the hauliers whose traffic he would be abstracting.
Time will tell whether the incorporation of the return load within the licensing system will make things easier or more difficult for operators. On the face of things it appears to give greater scope to the objectors, especially if, as in the case of British Railways and British Road Services, their operations cover the whole country. On the other hand, the operator who can, as may sometimes happen, establish the need for the return journeys he proposes to make may find that this strengthens a somewhat weaker case for the outward journey. It is this kind of consideration that is no doubt already being carefully weighed by the experts in the light of the lengthy judgments of the Court of Appeal.
The changes will be felt throughout the road haulage industry. Licensing in the past has tended to be parochial. Each licensing authority has worked for the most part within a closed system. He has not been over-concerned with the effect that his decisions might have on the situation in other traffic areas. Even where he has shown an interest, it has not been encouraged. However artificial the boundaries may be, each traffic area has been treated as a separate entity.
THIS has not merely been reflected in the attitude of hauliers towards the other man's return load—somewhat akin to the knock-for-knock policy adopted by the insurance companies. The cordon that each traffic area has thrown round itself has meant the strengthening of the road-rail negotiating machinery within the areas; it has been largely responsible for the present structure of the Road Haulage Association; and has probably played a significant part in the growth of clearing houses as indispensable guides leading the operator with a licence in one area to his return load in another.
If return loads are to be given the same consideration as outward traffic in the courts, the present structure of the industry may not stand up to the strain. The number of objections would be multiplied and they would come from all over the country. A national rather than an area structure might be found more suitable, especially for long-distance operators.
To cope with their applications there may have to be published a national edition of Applications and Decisions. If operators and objectors still wished to have discussions in advance of the traffic court hearing, it might be found convenient to have a national road-rail negotiating body. From this point it would be only a step to a national licensing authority—and I have previously suggested that a panel of licensing authorities might well replace the transport tribunal for the hearing of appeals. A central organization would help in the inevitable rationalization of objections in order to save scores of names going down against each application. A further result might even be the resuscitation of road-rail liaison, with power to consider many other subjects, such as rates, in addition to licensing.