The QU1CK—and the
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DEAD
By Our Legal Adviser THE five sittings of the Standing Committee on March 18-20 were devoted to consideration of the remaining clauses on road transport-12f hours for 25 clauses, some of vital importance to one of the country's greatest industries.
On the whole, however, the Committee has given more adequate attention to the points involved than one would have expected, thanks largely to Sir David Maxwell-Fyfe, whose ability to seize the main issues of the argument and,4 present them lucidly and with compelling (although not, unfortunately, irresistible) force, stands out in the proceedings. The guillotine fell heavily on the last two sittings.
Many Divisions The Opposition divided the Committee on .all the many major points. There was no hope of carrying amendments, but the divisions registered the protests not merely of the 10 or 12 Opposition members present, but of their colleagues in the House, who are excluded from the Standing Committee, and, through them, of the millions of voters who oppose the Bill's provisions.
Needless to say the Government's majority was always sufficient, with the voting about 22 for the Government and 12 for the Opposition.
Clause 40 had already been dealt with; the dividing line between the quick and the dead established. Clauses 41 to 43, relating to the funeral furnishings, nevertheless, provided important discussions.
Onus of Proof
First, an amendment was moved to place on the Commission the burden of proof that an undertaking should be compulsorily acquired. It is an accepted feature of English law that the prosecution must prove its case. When, therefore, the Commission seeks to acquire an undertaking, and the undertaker disputes that his undertaking falls into the appropriate class, should it not be the duty of the Commission to prove that the undertaking does so?
The matter would come before the Arbitration Tribunal for decision, and Clause 42 (1) enables the Tribunal, if the evidence be insufficient to prove either one way or the other, to decide the case oft what evidence there is . The Parliamentary Secretary took the line that, with many undertakers, especially the small firms, detailed records are not available to prove anything conclusively, and to require conclusive proof would often prevent the Tribunal from reaching a decision at all. He therefore insisted that the Bill should be left as it was.
Next, a Government amendment made it incontrovertibly clear that, although acquisition is aimed at Aand B-licence vehicles, C-licence operation is to be included in working out the qualifying ordinary longdistance carriage of goods To take an extreme case, suppose that an operator has six C-licence vehicles employed exclusively on transporting his own goods between two factories 45 miles apart, and one B-licence vehicle, which is not running. The mere fact that his undertaking consists partly of a B-licence vehicle renders the whole liable to acquisition, as the activities of the undertaking, taken as a whole, consist of ordinary long-distance carriage!
Clause 42 provides two tests to be applied in ascertaining whether shortor long-distance work predominates; if under either test long-distance transport predominates, the undertaking is to be taken over. The Opposition moved that it should be necessary for both tests to be satisfied before the liability to be acquired arises.
Mr. Peter Thorneycroft summed up the tests thus: "A firm can be treated as long distance if either more than half the tonnage which it carries is carried on long distance, or more than half the receipts which come into the firm are attributed to long distance." He pointed out that
either criterion by itself is unsatisfactory: a few tons carried a long way may be highly remunerative and so outweigh many tons carried a short distance.
The Parliamentary Secretary considered that for this very reason the alternative criteria were satisfactory. And the Government steam roller moved on.
New Formula ?
An amendment to establish threequarters as the measure of predominance, instead of just over half, was also quashed. The Minister is, however, reconsidering the question of the formula for converting volume to weight for the purpose of the calculation.
The Parliamentary Secretary also resisted an amendment relating to the basic period for vehicles working under the R.H.O.
Clause 48 (compensation) came in for heavy criticism. First, as to the replacement value of vehicles, on the Government side there was a complete failure to appreciate the apparently anomalous position that a second-hand vehicle in the garage is worth much more than a new one on the waiting list. It was suggested that those who purchased ex-Government vehicles at more than their new price were improvident and foolish.
Replacement Value
The Parliamentary Secretary, in answer to an amendment to permit the actual second-hand price paid to be substituted for the new replacement value, asserted that "what we are offering is replacement value at current prices."
It is not at all clear why the Opposition did not move to substitute for all the empirical values and theoretical calculations of Clause 48 (1), which are bound to reach an artificial figure bearing no relation to the real value of the vehicle, the practical method of assessment stipulated in Clause 48 (2) for all other property, i.e., what the vehicle would fetch if sold in the open market.
jr that method of assessment applies to other property, why not to vehicles? All vehicles will, in any • event, have to be valued for the purposes of Clause 48 (1) (b), so no added work will be entailed by such a simplification as suggested. Is not the suggestion in accord with the Parliamentary Secretary's assertion? Amendments to fix one quarter of the value as a minimum compensation, and to exclude trailers (on the grounds of their longer life) were unsuccessful.
The number of years' purchase which should be applied to average net annual profits in calculating compensation for cessation of business was evidently a matter of opinion on which Government and Opposition differed considerably. Sir David put the matter very clearly when he explained that accountants assess how many years are appropriate, by the degree of uncertainty in the line of business, with a range from two to 10 years.
74 Years' Purchase Placing road haulage in the middle range of security, he stated, on his experience, that five to 7i years, as was suggested in an amendment moved by Mr. Thorneycroft, was appropriate. The debate was somewhat confused by a not particularly suitable example, quoted by Mr. Thorneycroft, which attracted the attention of most speakers to the exclusion of the principle involved. The Opposition's appeal for sympathy for hard cases fetched no response from the Government side The Parliamentary Secretary thought he was being generous, and as he was advised that three years' purchase was usual in the case of " good " transport firms, he was entitled to his thoughts. He looks forward to the co-operation of road hauliers who lose their undertakings in running the new road haulage service, so that some at least may add a salary to their compensation!
The next big point was as to who should grant permits to A and B licensees to "go outside their 25-mile prison; the Commission, as the Bill lays down, or the Licensing Authority?
Not Judicial • The Government's case was simple. The Commission, it said, is set up with a duty to provide a complete long-distance service, with an absolute monopoly. The decision to grant a permit under. this clause must be an executive one, not judicial, and apparently be based only on whether the Commission want or do not want to do the work for which the permit is sought.
Only if the Commission does not want the work is a private haulier to be allowed to do it. This is something a Licensing Authority cannot decide.
The hardship caused to a haulier who escapes being taken over, but whose work often exceeds 25 miles, was urged without avail. So, too, the interest of the user who may for some special reason—say, cheapness —prefer to employ a private haulier. The question of efficiency—the little matter of the right vehicle at the right place at the right time—also brought no concession. If the user has any complaints, the Consultative Council will look after him, so the Parliamentary Secretary said.
The motion to increase the size of the prison from 25 to 60 miles' radius covered much the same ground as the debate on the 40-mile limit in Clause 40. The Minister agreed that whatever limit was chosen, it was bound to operate arbitrarily, and stop short of some desirable objective. He also relied on the 'fact that this was in accordance with existing practice, where operating distances are specified in licences (but are they not at present fixed having regard to the circumstances of each particular case?).
The Minister refused, too, to allow any latitude for the operator whose operating centre is on or near the coast, and so has a large proportion of his tearitory under water. As he cannot be fair to everyone, it seems, the Bill must stay as it is, even at the risk of being unfair to everyone.
Exempt Traffic Some repetition also crept in on the discussion on traffics exempted from the. prison walls, in the same way that they are exempted from capture under Clause 40. Pleas were entered for milk, bricks, tanning, perishable foodstuffs and other specialized traffics.
The Minister's answer was that the Commission's organization Sand resources will be far superior to the existing facilities. As many of the firms at present carrying on these traffics will be taken over, the Cornmission will have at its disposal the vehicles and drivers already doing the work, and so there should be no falling off in the services available to the public.
The operator who survives as a. prisoner need expect no compensation for his loss of freedom. If he finds he has too many vehicles, he may, provided that they are Aor Blicence vehicles, insist on the Commission's buying them—at Clause 48 (1) prices, of course—and he may pass over other property and contracts in connection with such vehicles on the same basis.
He is not, however, to obtain any compensation for loss of business, although the blow may be crippling. The Minister will reconsider the terms of compensation for severance.
'Government back-benchers demurred to the release of C licensees from their doom, but the various clauses dealing with this point have been satisfactorily killed.
The Minister had himself put down substantial amendments to Clause 67 as to the preparation of passenger transport schemes. Notably, they impose an obligation on the Commission to review passenger road transport "as soon as may be," preparatory to drawing up schemes; and when preparing schemes the Commission has to consult not only the local authorities affected, but also existing operators.
Delegated Legislation The major Opposition amendment was aimed at ameliorating the rigours of the method of delegated legislation under which passenger transport is to be nationalized. At a latef stage, the Parliamentary Secretary, egged on by his supporters, roundly declared that the area schemes are intended to introduce some form of public ownership, although some small local services might still be outside.
At present, schemes are to be embodied in draft orders of which public notice has to be given. If an objection lie made which is not frivolous and is not withdrawn, the Minister must cause inquiries to be made, as a result of which the Minister may make the Order with or without modification. The Order is then subject to special Parliamentary procedure, a new procedure as yet untried, under which the objector may have his case heard by a joint committee of both Houses of Parliament.
The Opposition proposed to set up a special tribunal to replace the Ministerial inquiry. Not surprisingly, the Parliamentary Secretary would have none of this ,interference with the Minister's powers.
Subject to the satisfactory operation of the proadure in practice, the objector should be fairly well protected, as things stand.
Contract Work Excluded It Was made clear that schemes are able to cover all types of road passenger service, except the contract
carriage. • When dealing with.Clause 27, the Minister said he was looking further into compensation for local authorities, to make provision for recouping their losses on severance of their transport undertakings. It is understood that this referred more to road than rail, but the amendments will not appear until the Report Stage.
As it stands, orders under Part IV of the. Bill, to be " satisfactory " to the Minister, have to contain compensation provisions identical or reasonably comparable with those contained in Parts II and III.