Political Commentary By JANUS
Page 61
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Googly
NOT content with throwing the book at us, the Transport Tribunal seem bent upon throwing a whole library. In the course of an unusually short judgment on the recent Weaver appeal, they refer to Section 11(2) of the Road and Rail Traffic Act, 1933, Section 9(3) of the Transport Act, 1953, Section 44 of the Road Traffic Act, 1956, and a decision made in 1948 by the Road and Rail Appeal Tribunal. Whoever follows up these clues finds little to reward him. Certainly they do not point him towards the conclusions reached by the Transport Tribunal, who excel in the legal equivalent of the googly that breaks in a direction impossible to guess from watching either the bowler's hand or the expression on his face.
Section 11(2) of the 1933 Act sets out the circumstances in which a carrier of goods may objeCt to a licence application from another carrier or prospective carrier. Section 9(3) of the 1953 Act says, among other things, that, when considering whether existing facilities are reasonable, the Licensing Authority shall have regard to the charges made and to be made.
Both these references fit easily enough into the framework of the Weaver case. The applicant asked the Western Licensing Authority for a B licence on the strength of a successful tender to carry for the Somerset County Council. The Authority granted the licence, and limited its use to "day work on the carriage of road-making materials and plant for the S.C.C. as required." Five hauliers appealed, and were supported by the Road Haulage Association.
According to the judgment of the Tribunal, although not explicitly stated in it, the whole case revolved round the "charges to be made." Mr. Weaver, apparently an owner-driver, quoted in his tender "10s. per hour on the basis of a 44-hour week." As far as the evidence showed, all the other quotations vaYied between us. 6d. and 13s. per hour.
Equal Unwillingness The main reason for the insertion of the point I have mentioned in Section 9(3) of the 1953 Act was probably that, before the Act was passed, Authorities had habitually declined to become involved in the rates question. They have shown an equal unwillingness since the 'passing of the Act. The ambiguity at the heart of Section 9(3) has not so far been resolved. Nobody knows whether, in "having regard to charges," an Authority should grant a licence because the applicant is quoting a keener price than anybody else, or refuse the licence because he is undercutting the fair rate.
The form in which the judgment in the Weaver case is set out gives the impression that the Tribunal are about to make a definitive statement on an obscure point. The impression is strengthened by the further reference to Section 44 of the 1956 Act.
If the Authorities find themselves able to leave the rates question alone, the same cannot be said of Parliament. In the unexpected context of an Act dealing mainly with the regulation of traffic, Section 44 adds yet another item to the list of circumstances in which an Authority may suspend or revoke an A or B licence. He may now do so if the rates charged by the licence-holder have persistently been below cost, with the result that his road transport competitors have been placed at an undue or unfair disadvantage. Although the terms of the Section are restricted to suspension or revocation, the Tribunal obviously consider that it has some relevance to the hearing of a licence application, especially when, as in the Weaver case, the proposed rates are a decisive factor.
Perhaps the Tribunal like to catch us on the wrong foot. Section 44 is designed to curb cut-throat competition, and can hardly be read in any other sense. By introducing it into a case where, strictly speaking, it does not apply, the Tribunal appear to be setting the scene for the triumph of the fair rate and the discomfiture of the price-cutter. In other words, they appear on the point of allowing the appeal and denying Mr. Weaver his licence.
If this is a reasonable conclusion, it also happens to be wrong. The Tribunal give it as "a material fact established by the evidence" that Mr. Weaver's 10s.. an hour is sufficient to cover his costs within the meaning of Section 44. On the basis of this "material fact," they reach their decision in three easy stages. The facilities offered by the appellants were unsuitable because their charges were substantially higher than those of the respondent; the council ought to be enabled to take advantage of the difference in rates; and the Authority was therefore right in granting the licence.
Inviolable Right
Irrefutable though the conclusion may appear to the Tribunal it cuts across assumptions upon which many hauliers have grown accustomed to rely. When a loeal authority are asking for tenders, operators licensed to do the work have felt they ought to have some preference over a newcomer. They have seldom argued that they have an inviolable right to the job, but have nevertheless maintained that only very special circumstances would justify the granting of a new licence on the strength of a successful tender.
It is implied in the Weaver decision that the statuses of the established operator and of the newcomer are equal when they are putting in their bids to a local authority. Presumably this would apply with other public authorities and in similar circumstances. All that the newcomer has to do is to undercut his licensed competitors.
The rate that he quotes on his tender must be sufficient within the meaning of Section 44 of the 1956 Act. This was a point on which one might have hoped for more guidance from the Tribunal. They accepted as already proved that the rate of 10s. per hour was adequate. It would have been illuminating to have had from them their estimates of the various items of cost involved in providing a tipper throughout the year for carrying roadmaking material and plant.
As often happens with the Tribunal, there is an unexpected development at the end of their judgment. They hint fairly strongly that a contract-A licence would have been more appropriate than a B licence. They have no knowledge of the terms of the tender and criticize the fact that this was not put in evidence. Throughout the traffic court inquiry, say the Tribunal, it was assumed that acceptance of the tender constituted a contract. If the assumption were correct, the Tribunal cannot see any force in the argument by the Authority that the 1948 Sergeant appeal precluded the grant of a contract-A licence.
With some caution, the Tribunal even suggest that the decision of the defunct Appeal Tribunal on the Sergeant case was unsound. The suggestion is too vague to act as guidance to operators who may have in mind challenging the Sergeant decision on some future occasion.