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E_IrcoprogmTlom by Keith Vincent
In the Gordon Wright case it was the unusual procedure adopted by the Tribunal which has important implications 9 A bit too friendly?
THE GOODS vehicle 0-licensing system is generally acceptable to operators, trade unions, users and the Government. Despite that high degree of satisfaction it saw a lot of changes, actual and proposed, in 1984 which could profoundly affect it.
Most attention, understandably, has been concentrated on the new regulations which introduced environmental suitability of operating centres into the system. More recently some allegedly cost-saving proposals involving slackening control of 0-licence discs have been put forward by the Department of Transport. These have been strongly opposed by the Road Haulage Association and the Freight Transport Association — the supposed cost-cutting has not stopped the DTp simultaneously proposing to increase fees.
But a recent Transport Tribunal case might well have an even more profound significance. The importance of the case, which involved Gordon Wright Transport of Norwich (CM, November 3 and December 8), is not primarily the legal point on which the case turned, though that — the use by operators of "selfemployed" drivers — is a perennial topic of dispute. Indeed, I will examine it in a later article in this series in the light of the Tribunal's judgment.
In the Gordon Wright case it was the unusual procedure adopted by the Tribunal which has important implications. Remember that 0-licensing is supposed to be a purely judicial scheme. When they are acting judicially Licensing Authorities are not civil servants answerable to a Minister. On the contrary, they are quite independent. There is no point in applicants or operators dissatisfied with LAs' decisions complaining to the Minister. The proper course is to appeal to the Transport Tribunal, which is of High Court status. (I described its work in an earlier article in this series — CM, July 7.) If Ministers do not like the way this works out in practice it is open to them to ask Parliament to alter the law on which the system is based. Any attempt to "lean on" the LAs or the Tribunal to achieve objectives which are not laid down in the relevant Acts and subordinate legislation would be improper — just as if the Prime Minister had privately asked the judges dealing with the banning of trade unions at GCHQ to rule in favour of the Government. All judicial bodies jealously and vigorously defend their independence.
Yet in the Gordon Wright case the Transport Tribunal actually invited the DTp to intervene on the point of selfemployment. In a move unprecedented since the end of carriers' licensing 14 years ago (and perhaps long before that) it asked the DTp for advice. This help took the form of what lawyers call an amicus curiae — literally "friend of the Court".
Naturally the DTp obliged, and learned counsel cited a High Court case involving agency drivers which decided that, for the purposes of the 1968 Transport Act, a driver was deemed to be employed by the person who wanted him to drive. This applied even if other branches of the law the Inland Revenue, say, or National Insurance — treated 'him as self-employed or employed by someone else. This enabled the Tribunal to remit the case back to the LA for further consideration in the light of the case cited by the amicus curiae.
That might seem a very satisfactory outcome. Certainly on this occasion the procedure enabled the Tribunal to reach a firm decision which will presumably assist the LA when the case again comes before him. But at least two doubts must arise.
The first is that of costs. The appellant's counsel asked for these, but the Tribunal only has power to make an order if it judges that the LA's decision has been not only wrong but perverse. Since appellants have to live with their LAs long after the Tribunal cases are over, they are unlikely to press such an argument.
Yet in the Gordon Wright case the appellant's legal costs must have been almost doubled because the Tribunal adopted this procedure. Since it seems to have clarified an obscure legal point to the benefit of the system as a whole it would surely only be just if the DTp offered an ex gratia payment, while revising the rules which limit the circumstances in which costs may be awarded.
The other point is much more fundamental — the independence of the system. In the Gordon Wright case the amicus curiae was scrupulous in avoiding comment on the facts of the case. He confined himself to the legal point already mentioned. He stressed that he was not appearing for the LA or the DTp (though presumably the latter was paying his fees).
It is not difficult to foresee that the Tribunal may be seeking the same sort of help more frequently. Indeed, because in the recent case the system worked well, this is quite likely. For example, when the Tribunal starts hearing appeals against LAs' decisions involving the environmental suitability of operating centres it might well want to seek guidance from the DTp, and perhaps the Department of the Environment as well, The temptation to seek outside guidance will be even stronger if, as proposed, the Tribunal's remit is extended to deal with bus licensing appeals. This would be a totally new field for the Tribunal, and would inevitably raise fresh questions. Guidance from the DTp might well be sought frequently, especially on the first few cases.
However scrupulously all parties behaved, this would inevitably increase Governmental influence over the way the system operates in individual cases. This would not neccessarily be a bad thing. On the contrary, it could have some positive benefits — for example, in greater uniformity between Traffic Areas. The important thing is that the Tribunal's decisions remain independent of central Government.
But the present system is not designed on this basis. There could be snags and misunderstandings if it were to become used frequently by accident rather than design. Perhaps the DTp should consider whether the law should be changed to give it a right to appear before the Tribunal in certain specific circumstances, rather than waiting to be invited. This could benefit all parties without in any way reducing the Tribunal's independence.