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The rule of law

2nd September 2004
Page 28
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Page 28, 2nd September 2004 — The rule of law
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Which of the following most accurately describes the problem?

A licence revocation has opened a can of worms in the transport legal process, says Chris Tindall.

The furore surrounding Pallas Transport and Montana Freight Services licence revocation has laid bare the confusion surrounding the legal process in the road transport industry It has also raised questions about the legal powers that Traffic Commissioners (TCs) possess when making decisions over a company's future.

Meanwhile, the plight of the two Northumberland haulage firms, which began following a dawn raid by police.Customs and the Vehicle and Operator Services Agency (VOSA) officials in February 2003, rumbles on after 18 months, with little hope of a resolution any time soon.

The background to the case is relatively straightforward. Following the raid, Customs officers announced they had discovered "significant amounts of paraffin" in the fuel tanks of 13 vehicles belonging to the two firms, which trade from the same premises. John McCaffrey, who runs Montana Freight Services, claimed he had bought 4,000 litres of fuel cheaply from a passing fuel tanker prior to the raid and this may have been the source of the paraffin.

Licences revoked

North Eastern Traffic Commissioner Tom Macartney was unimpressed. He decided both firms had lost their repute and duly revoked their licences.

An appeal was lodged and Macartney directed that the revocation orders should not take effect until the appeals were heard (CMS February).

However, the appeal was dismissed in June after the Transport Tribunal ruled it would not allow new evidence to be submitted. It was evidence the two firms believed would aid their case.

At this point Alec Hayden, who runs the transport manager consultancy Trans-Consult, was approached by Sylvia Pallas, owner of Pallas Transport. He agreed to help take the case to Scotland, where he thought they would get justice.

For a long time Hayden has taken issue with the TCs over the use of part-time transport managers — he has made no secret of his disdain of what he sees as their unregulated power.

Hayden duly won a hearing in Scotland's Court of Session, where judge Lord McEwan suspended Macartney's decision, apparently within minutes of the case being heard, McEwan gave the Department for Transport (DfT) 21 days to respond to his decision; he has also put the wheels in motion for an appeal to be heard.

Hayden claims this success was partly down to having a legal team that initially consulted with Ronnie Clancey QC —who has a formidable reputation in Scotland —and, intriguingly, former Senior Traffic Commissioner Michael Betts.

Hayden announced that he had successfully implemented a disciplinary procedure for the Transport Tribunal and carved out a "first in transport history". He also claimed the two haulage firms are now under the jurisdiction of Lord McEwan and can legally stay on the road without an 0-licence.

But doubts over the legality of McEivan's decision arc beginning to gain momentum. The Freight Transport Association's Gavin Scott says Montana and Pallas should have appealed in an English court. Even a Glasgow solicitor expressed disbelief that the case got as far as it did (CM 19 August).

Counter assertion

This sparked Hayden to counter with the assertion that TCs have "no legal standing whatsoever and are at the centre of a legal conundrum". And this is where it all becomes somewhat confusing.

Hayden bases his opinions on a report written by Sir Andrew Leggatt for the government in 2001. It looked at the accessibility and coherence of the tribunal system and set out the case for reform. Hayden claims Leggatt describes TCs as "a licensing authority which does not operate as a tribunal for the purposes of this report, but as a regulator".

Hayden adds: "Mr Macartney apparently has no quasi-judicial role. It would appear he has been demoted or stripped to a mere licensing authority or regulator. As such he would be employed by DfT or VOSA as a civil servant — not appointed directly by the Secretary of State for Transport." This observation is coupled with an attack on the Freight Transport Association and the TCs for suggesting McEwan's decision might be wrong.

Independent consultant Gerry Hamilton agrees there is "a confusing message being sent out by the government" over the legal standing of a TC:"I am not having a pop at the TCs; I am for fairness in the transport industry. But TCs seem to be this organisation created which has not been brought into line with current legislation. They are not accountable to anyone. Some TCs do quite a good job: unfortunately I do not agree with the decisions of others."

Hamilton claims it is almost impossible to find out who regulates the TCs: "First of all, the Transport Tlibunal was supposed to be part of the court service. But it says it's not; it's part of the Department of Constitutional Affairs, which in turn says it's part of the Tribunals Directorate.., but then that hi turn says it's part of the Department for Transport !"

However, Senior TC Philip Brown says Hayden and Hamilton are not in possession of all the facts. He says Leggatt chose only to look at the TC's licensing function: a move that echoed a similar report back in the 1950s, on which Leggatt based his own work.

"Leggatt's report didn't address the duality of [the TCs'] functions," Brown explains. -We are in a dual category: a licensing function and a regulatory function.They clearly decided not to address that. It's not a neat category.

-Look at the legislation: we are tribunals. We don't just sit there and make a decision on paper; our powers are judicial when we need to exercise them."

Tribunal review The TCs' office certainly doesn't accept that the TCs are unregulated. A spokesman says: -The Transport Tribunal will review any decision made by a TC as a judicial decision if an operator lodges an appeal. But if it was unhappy about a TC in a non-judicial function, then the Secretary of State would deal with it."

So, finally, where does all this leave the decision made in Scotland's Court of Session over the future of Pallas Transport and Montana Freight Services?

The North Eastern Traffic Area and Brown warn that they remain in limbo. The Treasury solicitor is considering whether the decision made by the Court of Session was made on a case outside its jurisdiction.

Neither claim to know how one English company, let alone two, managed to have an appeal hearing heard in Scotland. But Brown sheds some light on where the answer may be found: "It depends where the case law sits. [It will be under the jurisdiction] of whatever the precedent happens to be." •


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