Some Changes that
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Would Improve the Law T DoB:CE"Pe'
Stricter Control of Private Hire : Abandonment of Panel Commissioners : Discretion on Normal User : Closing Back Doors to Haulage. Abuse of C-hiring and Farmers', Licences : Employers' Obligations
MOST operators of regular public transport services have for some years been experiencing a difficult time. Rising costs of operation, particularly wages, and diminishing -receipts have necessitated frequent applications to the Traffic Commissioners for authority to charge increased fares. The maintenance of unremunerative services, particularly in rural areas, has bec2me increasingly difficult and has causea grave concern to the Government, who appointed the Jack Committee to inquire into and report on this problem.
There is little that can be done to retard increasing costs of operation. Drivers and conductors are entitled to a fair reward for their services, and even now bus companies are faced with staff shortages caused by the attraction of other industries where rates of pay and conditions of service are more favourable. The bus companies generally have effected all possible economies in operation, including the introduction of one-man. buses whenever possible.
As Quick by Bus
Any improvement in the position can result only from increased revenue brought about by the expansion of traffic on regular services. The tendency for people to use their own transport for travelling to and from work is likely to continue, although many are beginning to realize that it is just as quick to go by bus, particularly when it avoids the problem of looking for a parking place. "
One of the principal causes of loss of revenue to bus companies is the sporadic competition which results from the lack of control over contract carriages and private hire. The Thesiger Committee gave a great deal of thought to this matter, and recommended against the restriction of competition from this source. Instead, they proposed an amendment of the law relating to the conditions upon which G12 contract carriages could be operated. The law was amended by the Road Traffic Act, 1956, but is now so complicated that it requires a lawyer to understand it and enforcement is extremely difficult.
Seven years have now elapsed since the Thesiger Committee made their report. During this period the position of the bus companies has worsened to such an extent that more drastic steps should now be taken to regulate the wasteful competition to which they are subject from operators who do not have the responsibility of providing regular and often uneconomic services in the public interest.
Amending legislation could take the form of the exclusion from private hire of persons who do not hold road service licences to provide regular stage, express or excursion an-d tour services, or by the restriction of new entrants into the private-hire business, or by subjecting vehicles to be used for this purpose to control by the Traffic Commissioners on the basis of need.
T HE question whether panel
Commissioners should be dispensed with was also considered by the Thesiger Committee in 1953. It is difficult to appreciate why there should be a distinction between the Metropolitan Traffic Area and the others. In the Metropolitan Area the Commissioner sits alone and adjudicates. In all other areas the chairman cannot give a decision without one or more panel Commissioners drawn• from persons nominated by the local 'authorities. Nowadays the chairman has had so much knowledge of the industry and the problems affecting it that he is quite capable of giving decisions which take into account the public interest and the interests of local authorities, who, in any event, have the right to object to an application.
Panel Commissioners are unpaid, often they are busy men who can ill afford the time involved in attending public inquiries, and I think the majority would be glad to be relieved of their obligations in this respect. The principles governing the iSsue of road service licences take a lot of explaining and understanding and panel Commissioners, particularly if newly appointed, are generally content to rely on the decision of the chairman, who has expert knowledge and a wide experience.
The disadvantages involved in the present system are referred to in the Thesiger Report. Local authorities obtain little satisfaction from their right to nominate panel Commissioners, the appointments are made annually and s only two local authorities can be represented on the Commission at any time.
Continuity of service as a panel Commissioner is an obvious advantage and the result is that, although many are nominated, few are called. A further practical difficulty is that public sittings have to be arranged to fit in with the convenience of panel Commissioners and, if a case has to be adjourned, it is not always possible to find a date when the same Commissioners can resume the hearing.
Panel Commissioners do not usually take part in proceedings affecting their own local authority, and my view is that the interests of councils can better be dealt with by lodging objections or representations regarding applications which affect their area than by relying on panel Commissioners from another local authority.
Although the Thesiger Committee recommended the retention of panel Commissioners, I think the time has now arrived when they are no longer required.
nN the goods side, many people think `•-• that the decisions of the Transport Tribunal in Knight, Hesketh and other cases dealing with the question of normal user have resulted in an A licence with a restricted normal user being little better than a B licence. It is further suggested that the law should be changed to restore to an A-licence holder the freedom which he formerly enjoyed.
We live in times of change, and if road transport is to be efficient it must be sufficiently flexible to meet the changing requirements of industry. Furthermore, it not infrequently happens that a source of traffic upon which a haulier has relied ceases to be available to him or "drops off."
If, in these circumstances, there is a departure from a declared normal user, the haulier's licence should not, in my opinion, be in jeopardy of refusal on renewal, or revocation under Section 178 of the Road Traffic Act., 1960 (more familiarly remembered as Section 9 (4) of the Transport Act, 1953).
Theoretically, he can, as recommended by the Tribunal in the Knight case, apply for a new A licence with a revised normal user. In practice, this is not so easy. Witnesses must be produced to give evidence in court as to the need for the applicant to carry their goods and they will be cross-examined as to why they have not tried to obtain the services of the objectors. In fact, such an application is almost as difficult to substantiate as a" newcomer" application for an A licence.
On the other hand, it would be wrong if no regard were paid to the declaration of normal user and an A-licence haulier were at liberty to change the nature of his haulage at will.
Special A licences were capable of being bought and sold and a purchaser could do what he liked during their currency. A public A licence is discretionary, evidence of need is required to justify its grant and any increase in the tonnage operated.
No Drastic Change
In my opinion, it would not be in the public interest or in the interests of hauliers themselves if declarations of normal user made on the grant of such applications were to be wholly disre
garded. For example, it would be inequitable if a haulier, having obtained an A licence on the declaration that he would normally carry livestock, were subsequently free to abandon livestock and start carrying general goods Of some other specialized class of traffic, such as furniture or bulk liquids.
It is, therefore, a question of degree. There are many who think that the present requirements as to declarations of normal user and the penalties for non-compliance are inconsistent with the freedom that Parliament intended should attach to an A licence to enable the holder to meet changing conditions in industry. I think regard should be had to changing conditions and that consideration should be given to -whether a material change in a haulier's business is voluntary or whether it is brought about by circumstances outside his control.
It would be very difficult to frame amending legislation to restore the bal ance. It is really a question of the Licensing Authorities being permitted to use their wide discretion in considering the facts and circumstances on any particular application without being tied to principles and rules which tend to fetter that discretion.
THE comparative ease with which it is possible to switch from contract-A and C-hire work to public
A licences and the magnitude of some applications constitute a real threat to the haulage industry. Particularly is this so in the light of the Tribunal's decision that the grant of an A licence is accompanied by the right to carry return loads without proof of need. These return loads usually consist of the outward traffic of another haulier, which he has had to justify by proof of need, and which the former contract-A operator is able to obtain by the inducement of a cheaper rate.
The dangers inherent in the present situation were emphasized in an article by G. Duncan Jewell in The Com mercial Motor on August 12. .
Having regard to the damage which is resulting from the decisions of the Tribunal in Allison and the cases which have followed, correct though they are in law, I should welcome amending legislation to restore the position which existed following the decision of the Tribunal in Railway Executive and Frank Thompson (Hauliers), Ltd., and Lloyd Bros. (Haulage), Ltd.
That decision, now overruled, established the principle that the fact of an applicant's doing the work on which his application was based under a contract-A licence was no justification for the grant or variation of an A or B licence.
PROVISIONS of the 1933 Act deal-1. ing with C-hiring margins were designed to meet the case of a trader operating his own vehicles under C licence who may wish to hire additional vehicles as chattels in replacement of specified vehicles which are off the road for maintenance or repair, or to meet a seasonal or fluctuating demand, or are to be hired under a long-term contract from a contractor who purchases the vehicles and maintains them.
By and large, this facility was used in the way it was intended, with little or no abuse, until the coming into operation of the Transport Act, 1947, which nationalized long-distance haulage and restricted those who remained to a 25-mile radius. This restriction applied to A, contract-A and B licences, but not to C licences.
To overcome it, hauliers and traders not wishing to employ nationalized transport or purchase and use their own vehicles, resorted to the C-hire dodge. The haulier supplied the vehicle, which was operated under the trader's C-hire margin. Usually a rate per ton was charged in exactly the same way as if the haulier were operating under an A or B licence. The drivers technically had to be the servants of the trader and various questionable devices were resorted to, so that within the law they were his servants.
The supply of a vehicle under. C hire was not limited to one firm and often a driver had a pocketful of C-hire discs, which were displayed on the vehicle according to the trader whose goods were being carried at the time.
This abuse has continued since the • repeal of the 25-mile limit. It is
thoroughly bad and contrary to interests of hauliers who play the game. Legislation should, in my opinion, be introduced to restrict the use of C hire to the purposes for• which it was originally intended.
NOTHER abuse which requires ."`remedial legislation arises from the provisions of Section 1(5)(c). of the 1933 Act—now Section 164(5)(c) of the 1960 Act. This section provides that the carriage by a person engaged in agriculture ih a locality of goods for or in connection with the business of agriculture carried on by another person in that locality is not deemed to be carrying for hire or reward. The meaning of locality has never been defined, although one Licensing Authority indicated a radius of approximately five miles in his traffic area.
Availing themselves of this loophole, farmers have to an appreciable extent been working as hauliers of livestock• and agricultural produce under C licences. They have been unfairly carrying traffic which would otherwise be handled by hauliers operating with A or B licences. I have heard of farmers operating fleets of vehicles for hire or reward, although their own work would hardly justify the employment of one.
There seems to be little justification for the exception which enables a farmer, as distinct from other traders, to carry for hire or reward under a C licence. It would no doubt be a convenience if an ordinary trader could carry for a neighbouring trader, but this would soon defeat the objects of the 1933 Act.
In these days when agriculture Is well supplied with hauliers, I cannot see the need for the continuance of this exception. It should be abolished altogether, or restricted to farmers whose holdings are contiguous.
I-1AS the law stands, if a driver fails to keep a current record sheet or fills it in wrongly, contrary to Section 16 of the 1933 Act—Section 186 of the 1960 Act—and the Goods Vehicles (Keeping of Records) Regulations, the employer is absolutely liable. It is no defence for him to prove that he took all reasonable steps to ensure that the law was complied with. Convictions in the magistrates' courts can lead to hauliers being brought before the Licensing Authority to defend their licences.
Record sheets are incorrectly completed through carelessness on the part of the driver or by his trying to cover up an illegal period of driving.
The Licensing Authorities' system of silent checks, followed by an inspection of the record sheets, bring these offences to light.
No Automatic Conviction I do not for one moment condone the action of an employer who encourages his drivers to break the law, or winks an eye when breaches occur, but 1 do think it wrong that an employer who does his best should be automatically Convicted, thereby jeopardizing his licence. After all, once a driver leaves his employer's premises, the employer is in his hands.
In the case of hauliers operating a number of vehicles, it is almost a miracle if their drivers do not slip up occasionally, however explicit the employer's instructions may be.
Although a haulier can show cause before the Licensing Authority why his licence should not be revoked or suspended, it is difficult, where there has been a number of convictions based on drivers' errors, to satisfy the Authority that the operator himself is blameless.
The law should be amended so that it is a defence to proceedings in the magistrates' courts, which can result in the subsequent revoCation or suspension of a carrier's licence by the Licensing Authority, that the employer has taken all reasonable steps to prevent the offences.