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23th August 1968, Page 42
23th August 1968
Page 42
Page 42, 23th August 1968 — Janus comments
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Which of the following most accurately describes the problem?

Keywords : Repeal, Statutory Law

School of Barbara Castle

COMPUTER experts have recently proved to their own satisfaction at least that the works attributed to Homer were indeed till written by one person instead of a syndicate or a man-and-wife team as had been widely believed. As computers and statisticians are fashionable in transport as well as in the study of Greek mythology it is tempting to suppose that somebody some day will hit On the idea of using the same test on the original Transport Bill to determine how many different people had a hand in its framing.

To apply the technique to the Bill in its present form would be the most likely way of giving the computer a fit of hiccoughs. So many fingers have left their prints, with the Government and the Opposition at one stage apparently competing with each other to see which could produce the greater number of amendments. By the time that the Bill becomes an Act the confusion will be even greater.

From this point of view the legislation will seem a mosaic of several hundreds of pieces gathered from a wide variety of sources. In fact the original intention of the Government will still show through. There will be provisions for quality licensing, quantity licensing, passenger transport authorities, reduced drivers' hours and the rest. It will resemble the Bill that Mrs. Barbara Castle introduced more closely than it resembles anything else.

Many hands needed

Even the first Bill obviously was not the unaided work of the Minister although by the political convention she had to accept the responsibility for the whole. To cover such a massive canvas many hands were needed. On the analogy of the world of art it would be safer to attribute the Bill merely to the "school of Barbara Castle". The Minister would have devoted most of her attention to the principal figures, leaving the Minor items and the background to be filled in by other people.

Presumably the greater number of these would be civil servants. They would take the opportunity among other things to tidy up items already on the Statute Book and perhaps even to change something that was not particularly to their liking. In the process they could easily produce results very much to the disadvantage of certain members of the public.

Detection is seldom easy. The White Papers preceding a Bill and even the preamble to it are normally concerned with the main issues and not with adjustments that on the face of it may seem insignificant. A new ruling may be introduced in such a way that only the sharpest eye can detect it.

For the road operator who has had his eye on other things it is not feasible to examine every word of a massive Bill for possible snags. The fact that the Bill is being hurried through parliament must increase the risk.

One example of what can happen has already come to light. Perhaps somebody within the Road Haulage Association or one of the other interested organizations first noticed that the Bill as originally drafted would deprive operators of what many of

them had found a valuable safeguard.

It was the Road Traffic Act 1962 which first laid down that where an operator was accused of offences concerning drivers' hours and records it was "a defence to prove that he used all due diligence to secure compliance" with the law. The first Bill did not say directly that this plea would no longer be valid. The only clue was in a list of miscellaneous repeals which included the vital section 20 of the 1962 Act.

As the maximum penalty was being increased to £200 it was as well that somebody noticed what was in effect the creation of a new offence by a few apparently innocuous words in a largely unregarded appendix. It was generally assumed that the repeals set out there were merely consequential upon changes in the main Bill. Thanks to the guillotine the appendix was agreed without discussion during the committee stage in the House of Commons and the same summary treatment was given to the section dealing with written records on which it might have been possible to raise the subject.

Plainer language now

Behind the scenes it had not been ignored. On the report stage a Government amendment was approved to the proposals on written records. It enables the operator or presumably his transport manager to escape conviction "if he proves to the court that he has taken reasonable steps to bring the requirements" of the section to the notice of his driver "and has from time to time taken reasonable steps to secure that that person is complying with those requirements".

This is plainer language than the earlier reference to due diligence. More than one operator has found the latter plea useful. From any rational point of view he ought to be exempt from prosecution if he has done all that could be expected of him to ensure that his drivers keep the law.

Exactly what went on behind the parliamentary scene will probably never be known. Although nominally responsible for the first draft of the Bill Mrs. Castle can surely be absolved from wishing to put yet another burden upon operators whom she was already threatening with a massive dose of' taxation, restrictions on movement, a reduction in the working day and stricter enforcement of the law in general. Abolition of the plea of due diligence would have seemed a petty matter not worth consideration in such a context.

It is almost equally incredible that a mistake was made and that whoever was responsible for deleting the section from the 1962 Act forgot to make the balancing adjustment elsewhere in the Bill. This appears to leave only the possibility that somebody actually wanted to get rid of the section unilaterally, perhaps feeling that it left operators too large a loophole.

Biding his time

Whether or not this person is fictitious it is tempting to imagine him biding his time from 1962 until 1968 in order to get his own way. One may take the story even further back and pidture him knocking in vain at all the doors along the corridors of power .

in order to keep the offending saving clause out of the 1962 Act in the first place. Whatever happens to the Bill it is safe to assume that the clause in its new form is safely embedded in sub-section (4) of what is now section 97. Operators may ask whether scattered through the ample measure there are other booby traps which will not be sprung until after at long last the Royal Assent is given. It will then be too late for effective action.

There are in any case enough harmless curiosities in the language of parliamentary draftsmen to baffle the ordinary reader. It is strange, for example, to find also in the final schedule concerned with repeals a proposal to abolish paragraphs 3 and 6 of schedule 16 of the Transport Act 1968.

Puzzled by this reference to a non-existent piece of legislation the reader slowly realizes that the Transport Act 1968 is in fact the Transport Bill which he has just finished reading and which is apparently beginning to feed on its own entrails before it has even been passed. It is as baffling a . concept as any to be found in the realms of science fiction.

There has to be a prosaic explanation. The apparently stillborn provisions are to be repealed as from one of the "appointed days" sprinkled freely through the Bill. To continue the science fiction comparison they are the equivalent of those sections of the space craft which fall away after they have completed their task.

As with the launching of a space craft a considerable team of anonymous acolytes must have been needed to help the Minister get the Bill of the ground. Their work has continued throughout the complicated pro cess of parliamentary revision. Many of them have been concerned only with a narrow section of the Bill and have perhaps never looked at it as a whole. They are the fitters of the nuts and bolts but the part on which they are working can be of considerable importance to road operators as a whole or to individual operators.

Whether one approves of the Bill or not it must be the general hope that when it comes off the production line all the loose ends will have been tied up.


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