Talk Like Tap
Page 59
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DAEDALUS, in the Greek legend, made wings for himself and his son Icarus, and with their help escaped from Crete. Forgetting that the wings were fastened with wax, the rash youth Icarus flew too near the sun, the wax melted, and he fell into the sea and was drowned. A similar fate, although not in a literal sense, has befallen the operator from the Potteries, C. Knight and Sons, Ltd., who recently appealed against the refusal of the West Midland Deputy Licensing Authority to renew two A licences (The Commercial Motor, last week).
Point-blank refusal to renew a licence is still sufficiently rare to excite wonder, although there are signs that it may become increasingly common. In the past, other operators pursuing much the same course as Knight, but in a more moderate and less obvious fashion, have appeared to get more or less what they wanted. It may be a combination of bad luck and foolhardiness that exposed Knight to the full heat of the Transport Tribunal, with fatal results.
The latest decision gives another turn to the screw with which the doctrine of normal user is tightening up the activities of hauliers. The Transport Tribunal, in their written explanation of their reasons for rejecting the appeal, make the heroic claim to have examined all the cases, prewar and post-war, in which their predecessor, the Appeal Tribunal, considered what ought to be done to an applicant for renewal who had departed from his previous declaration of normal user. Apparently, no case could be found, where the former Tribunal had upheld or directed the refusal of the application, because of such a departure, unless the applicant failed to prove a need for the services he was providing outside the terms of his licence. .. _
Commonsense View
As the number of past cases turning upon the question of normal user must have been considerable, the obvious inference is that the Appeal Tribunal thought of proof of need as in some way condoning the failure to live up to the letter of the declaration. This would be the commonsense view. If an operator, however reprehensibly, changed the nature of his business to meet the wishes of old or new customers, those wishes are an indication of need, and the Licensing Authority should satisfy himself that the need can be met before refusing the renewal out of hand.
The Transport Tribunal will have none of this. With the skill and clarity to which we have become accustomed, they established beyond legal doubt . that a Licensing Authority has power to refuse a renewal application for an A licence if the holder has acted contrary to his declaration. To treat it, they say, "as a mere flourish or statement of intention to which no one expects the applicant to adhere, and from which once he obtains his licence he is free to depart, is to make the exercise of a Licensing Authority's discretion a farce."
The Tribunal make a point of associating their kindly old. predecessor with their expression of opinion. They maintain that the lack of any previous refusal of a renewal may be interpreted as meaning no more than that in no case did the Appeal Tribunal consider that the nature of the departure from normal user was such as to warrant a refusal on that ground alone. This interpretation is possible, but seems unlikely. Alternatively, the present Tribunal, had they been given the opportunity, might have thought differently about the extent of the departure in some of the earlier cases. Whilst agreeing that there must be a first time, they would perhaps have dated it years ago. In condemning the appellant, the tribunal do not mince their words. A drastic divergence from the declaration of normal user they regard as relevant "previous conduct" to which a Licensing Authorityis to have regard, and they leave little doubt about what sort of conduct they think it. "We regard this," they say, "as a flagrant case unaccompanied by any mitigating circumstances." The evidence showed that for nearly two years Knight had been guilty. of a "wholesale and continuous departure from the declarations on the faith of which they had obtained the licences."
One of the contentions on behalf of the appellant was that the evidence showed a need for the continuation of the facilities that had for nearly three years been provided without permission. Having decided that the Licensing Authority was entitled to refuse the renewal without inquiring into the question of need," the Tribunal themselves dismissed the question, so that the customers served by Knight had no opportunity of stating how much (or how little) they wanted the service to continue.
Cynical Speech The Tribunal might perhaps have spared a thought for this aspect of the matter. They lay stress on Section 6(2) of the 1933 Act, as amended by Section 9(1-) of the Transport Act, 1953, with the ultimate effect of enjoining a Licensing Authority to "have regard to the interests of the public generally, including primarily those of persons requiring facilities for transport and secondarily those of persons providing facilities for transport."
To the Tribunal it seems "reasonably plain " that it is neither in the interests of the seeker or the provider of transport, nor of the general public, that a haulier should be able to say: "True it is that I got a licence by saying that I would do one thing and that I have done another, but now that I have exhausted the benefits of that licence, the fact that I have so abused it must not be held against me when I ask for another."
So cynical a speech, with its improbable flavour of late Elizabethan drama, should manifestly be excluded from any manual of traffic court etiquette. But is it true that the interests of the customer are controlled solely by the propensity or otherwise, of the haulier to talk like Iago?
The trader who employs a haulier without an adequate licence, or a man with no licence at all, deserves to run into trouble if he is suddenly deprived of transport when the law catches up with the bogus carrier. Possession of an A licence, however, should be a sufficient guarantee that a haulier is respectable. The trader Who asks to have a look at the declaration of normal user before he hands over a load must be a very cautious individual. In any case, the operator is entitled on occasions to go beyond what there is otherwise no point in describing as "normal," so that the trader need not feel he is encouraging wrong-doing by offering traffic not strictly within the terms of the declaration.
It is, I would suggest, very much in the interests of "persons requiring facilities for transport "—who are to have first consideration according to the 1953 Act=-that they should have a chance. of bearing witness to their need when their haulier's renewal application is turned down because, by carrying their traffic, he has overstepped the bounds of normal use. Perhaps there mere sound reasons for the apparent reluctance of the old Appeal Tribunal to refuse renewal in cases where there was proof of need.