Important Concessions to Road Transport
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By. Our Legal Adviser
List of Exempt Traffics Extended ; Contract A Work Removed from the Bill ; Commission to Prove Case for Nationalizing Businesses ; New Compen sation Provision.
GREAT things happened last week. The greatest, the raising of the " long-distance " definition to 80 miles overall and 50 miles radius, has already been noticed. Next, the legal radius for nonnationalized undertakers under Clause 52 was increased to 50 miles; the Lord Chancellor agreed that this was really a consequential matter and let the amendment go without a division on the understanding that the Government was not to be taken as in any way assenting.
Both sides accepted in the same way the parallel exemptions which occur in both clauses 39 and 52. This was just as well, as the debate during discussion of the exemptions when they first arose on Clause 39, was mostly appropriate only to Clause 52.
Exempt Traffic On Clause 39, the exemptions are a list of traffics which are not to count as ordinary long-distance carriage in making the calculations which decide whether an undertaker is to be taken over or not. The discussion, however, turned on whether the traffics should be allowed to exceed the limiting radius under Clause 52 (50 miles, as it stands at present) without the need for the operator to obtain a permit from the Commission.
Two divisions were necessary to establish the Opposition's determination to make further exemptions. The first, on a motion by Lord Beveridge, exempted contract A vehicles. The second, moved by Earl de la Warr, excluded milk traffic.
Various other traffics were virtually agreed to in principle by the Government spokesmen, subject to approval by the Minister. It may be taken that if the Government does not agree and does not put down appropriate amendments on the Report stage, the Opposition will bring them up again, and, next time, vote on them.
These traffics were: Perishable foodstuffs (Lord Teynham); the carriage in bulk in tipping vehicles of sand, etc. (Earl of Selkirk); round timber in specially constructed vehicles (Lord Balfour of Burleigh); and, rather doubtfully, vehicles carrying gear for the use of other vehicles engaged on exempted traffics (Lord Teynham). The carriage of certain classes of goods for which specially constructed vehicles are necessary by statute was similarly accepted in principle for exemption from Clause 52 on a motion by Lord Rochdale.
Several proposed exemptions were rejected altogether, including " all " furniture removing. " Ordinary " removals were, and are still, included in the Bill; the amendment would have made any furniture removing (from factory to shop, for instance) exempt. Films, dangerous drugs, agricultural produce and pharmacists' supplies (this was moved on Clause 52 only) also failed to qualify for exemption.
Government Criteria Most of the discussion followed the lines of that in the Commons Committee. The Lord Chancellor gave as the criteria adopted by the Government in preparing its own list of exemptions, either the nature of the work (e.g., furniture removing which involves more than just. driving a vanload of furniture from one place to another), or the nature of the vehicle (e.g., a tank vehicle). Both he and Lord Nathan emphasized their expectation that the Commission would do the job just as well as the private haulier.
The Earl of Selkirk moved that undertakers operating in the seven crafting counties should be exempt from nationalization, because, by the very nature of their territory, virtually all their Work would be long distance. Lord Saltoun wanted to go one further and apply this exemption to the whole of Scotland, although he did not press his point. The Lord Chancellor undertook to investigate the possibility of allowing the Commission some discretion as to whether to take over or not (the B.T.C. has none at the moment), and the amendment was withdrawn.
An amendment to require the Commission to have regard to the needs of, and any special circumstances affecting, the locality, in exercising its discretion whether to grant a permit or not under Clause 52, was moved by the Government to meet a similar point on that clause.
Another major gain was achieved when an amendment, moved by Lord Simon, to place on the Commission the burden of proof that an undertaking is liable to acquisition, was carried on a division. Lord Simon (a former Lord Chancellor) recognized the necessity of the proviso to Clause 41 (1) to cover cases where only some part of the information necessary was available.
Who Shall Show Proof ?
The Arbitration Tribunal will, however, have to know at the outset of proceedings whether the Commission has to prove its claim that the undertaker is liable to acquisition; or whether the undertaker has to prove that he is not.
The Lord Chancellor based his reply on the proceedings not being a lawsuit, but merely a decision as to facts. If a shepherd has to separate sheep from goats, he does not need any onus of proof. What the Bill provides is that the Arbitration Tribunal shall decide whether, in fact, the undertakings on which notice of acquisition has been served come under Clause 39 or not. There is no onus Ol proof here.
Lord Simon, in his reply, emphasized that if the Tribunal's decision went against the undertaker, he would lose his right to carry on his business. It is always the person who has the right to take something from another who has to prove his case. And so the Bill says—for the present.
Two amendments to Clause 41 were moved. The first sought to make the alternative tests, by weight and value, of long-distance haulage, into cumulative tests; that is, that the undertaking should be "long distance" by both tests, and not by only one. This was not pressed, as the Opposition preferred to concentrate on the second amendment.
The second amendment was to substitute three-quarters for half as the proportion of receipts from longdistance haulage to the total value of services of the vehicles, which will decide that an undertaking is "long distance" by the value test. " Fiftyfifty " may he honest in tonnage, said Lord Swinton, but not in cash. It is not common sense to claw in a man because, by reason of a few weighty items at specially high rates, the receipts from long-distance work are 50 per cent. of the whole.
Lord Simon pointed out that the weight carried on a journey remained the same, but the receipts went up with the length of the journey. There was no parallel between the two tests.
The Value Test Lord Nathan, in his reply, pointed out that, in the value test, relationship is not between receipts for longdistance work and receipts of long plus short-distance haulage, but between income from long-distance transport and the total value of the services of vehicles, including exempted traffics and the value of services carried out not for hire or reward (in C vehicles). Finally, he offered to bring the discussion to the notice of the Minister for consideration if the Opposition would withdraw the amendment.
Hoping that something would come of this, and reserving his right to put the amendment down again on the Report stage, the Marquess of Salisbury accepted this offer.
One or two of the Commons debates and subsequent negotiations with the Road Haulage Association are having delayed results in the form of Government amendments in the Lords. One of these is designed to help the middle-sized undertaker and enables up to £2,000 of the compensation to be paid out in cash where the total compensation payable is less than £20,000, the balance being paid out in Transport Stock.
Another of these "delayed results" provides additional compensation for the existing undertaker who asks the Commission to take over certain vehicles only on refusal or revocation of an original permit. As originally drawn, Clause 54 allowed no compensation for cessation of business.
A new and rather complex clause provides compensation if the undertaker can prove that one or more of the vehicles to be taken over was used wholly or partly in the oreced ing 12 months on work for which a permit is necessary, and was customarily selected for such work. Compensation will be at the rate of £70 per ton of (a) the minimum total carrying capacity which would have been necessary for carrying on the long-distance work done by the undertaker in the preceding 12 months (whether in the vehicle to be taken over or other vehicles), or (b) the total carrying capacity of the vehicles being taken over; whichever is the less.
"Carrying capacity" is the gross permitted weight of the vehicle, less the unladen weight, and, in the case of vehicles other than trailers, minus the weight of any normally carried container and less 500 lb.
Compensation under this clause is to include compensation for severance, which cannot be claimed in addition.
Two more differences of opinion must be referred to before leaving goods transport. Under the first, Lord Swinton wished it to be laid down that, after delivering goods on a journey with traffic exempted from the restrictions of Clause 52, a permit would be granted as of right to the vehicle for a return load.
Obviously, he said, if one can have a full return load, one can quote a very different rate from that which would be possible if one came back empty. The Commission will be able to work and quote on a basis of return, loads, thus undercutting the private operator.
Loophole Sought The Lord Chancellor retorted that the amendment would drive a coach and four through the Commission's monopoly. All that would be necessary to dodge the Act would be to carry a milk churn to any destination at which one wished to pick up a load.
This amendment was withdrawn, subject to the right to return to it later, but the other difference of opinion was settled (needless to say, in favour of the Opposition) by a division. This was on the question of whether the Licensing Authorities should exercise the same control over the vehicles of the Commission as they do over the vehicles of ordinary undertakers.
Lord Swinton, in spite of the Government's resistance to the amendment referred to above, found it inconceivable that the Government intended that, where more transport was required, the whole of the increase should go to the Commission and none to the ordinary undertaker. His amendments accepted all the principles of the Bill. but maintained equality between the permitted operators, whether the Commission or independents.
Discussion extended not only to goods vehicles, but also to passenger vehicles, where the same principles were involved.
The Lord Chancellor called attention to the COmmiSsion's duty under Clause 3 to provide an efficient transport system. If Parliament imposed that duty, how could Parliament also require the Commission to go to a Licensing Authority to ask permission to carry out its statutory obligation? In any case, the Commission would not be carrying out its duty if it set out to destroy an existing efficient service.
One-way Monopoly Lord Swinton, in reply, said that the Government had left longdistance transport to the Commission and stopped others from competing, but the reverse did not apply to short-distance work. Suppose the' Commission put extra lorries on in the name of efficiency, where would the Licensing Authority stand on an application by an independent undertaker to introduce more vehicles?
So the House divided and the Commission will be on the same footing as everyone else.
The way passenger transport is dealt with in the Bill makes it a difficult subject to "get at." So much must of necessity be left vague until the schemes are prepared.
Lord Addington moved an ainendment to make it mandatory that some members of any body constituted to provide passenger services should be representatives of local authorities Lord Morrison agreed to consult his advisers to see whether something on these lines could be done, and the amendment was withdrawn.
The Committee got itself rather tied up in discussing an amendment by the Earl of Selkirk to leave out Clause 63 (d), which enables schemes to specify the services to be provided and to prohibit other services. Lord Addison could not imagine a scheme which did not specify the services, and this seemed to be tacitly accepted.
Discussion turned from the second half on to the powers of objection to a scheme. This subject evidently will be discussed at some length, as also will compensation as applied to passenger transport, when the Eighth Schedule, which deals with these two "details," is considered. The amendment was withdrawn.
[At the time of closing for press the Eighth Schedule was expected to be reached yesterday.—ED.]