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Inquiries: public or private?
Page 41
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by lain Sherriff
• There appears to be some confusion in the ranks of operators concerning the provision for public inquiries under the new Transport Act. The LA will continue to hold public inquiries as he thinks necessary. It is important to understand here that the LA has still this descretionary power, but he is not duty bound.
Section 86 of the Transport Bill makes it clear that the LA may hold such inquiries as he thinks necessary for the proper exercise of his function under part 5 of the legislation. This in effect means that applications for new, varied or continued operators' licences, special authorizations or transport managers' licences can be called to a public inquiry. In addition, any proceedings resulting from enforcement officers' inspections which could lead to revocation, suspension or curtailment of these documents can. also be heard in public. When the Bill was in the House of Lords an amendment was accepted which gave the applicant the right to request that the hearing should be held in private. The reason advanced was that the applicant might not want his business rivals to know the details of his distribution or other costing and scheduling.
This amendment hardly seemed necessary because in the course of a public inquiry the relevant evidence has in the past been submitted to the LA in writing. In this way, only the applicant and the objector knew the details. Despite the amendment, however, the LA still has the power to refuse such a request.
The amendment has had the effect of blocking any leak of information given in
evidence at an inquiry held in camera. Thus, not only would admission be restricted but the evidence would not become public while
the applicant continued to trade in the business for which an application had been made.
However, having requested a hearing in camera, the person submitting the evidence
can disclose it to those not admitted to the hearing. It may also be disclosed to one who requires it for the discharge of his duties in terms of the Act. Finally, it must be disclosed for the purpose of institution of legal proceedings arising out of the Act including those before the Transport Tribu nal. The penalty for disclosing the information in contravention of Section 86 is E200.
Again let me stress that the LA may grant a request for a hearing in camera but he is not bound to do so, and I firmly believe that the applicant will require to make out a good
case before such a revest will be granted.
The admission of those not directly involved in the proceedings at public inquiries has in the past helped the industry to understand how legislation operated. Exclusion in the future would, I fear, be detrimental to the new type of transport industry which the new legislation will produce. Certainly I cannot visualize a Section 68 or 78—they replace 178—inquiry being held in camera, although in the terms of the Bill a request for this is possible.
The terms "quality" and "quantity" are constantly being applied to the new legislation. In fact they mean an operator's licence and a special authorization respectively, and before an applicant, can obtain a special authorization he must hold an operator's licence. The Ministry recognizes that there may be cases where an operator setting up business requires all or part of his traffic to be specially authorized. As a result, an application for both the licence and an authorization can be heard at the same public inquiry.
The Licensing Authority's powers of revocation, suspension or curtailment of either an operator's licence of a special authorization cannot be exercised until an inquiry has been held either in public or in camera. Before an inquiry need be held, however, two or more persons must request him to do so, and then a single inquiry in response to all the requests will meet the needs of the Bill.
When the offence involves the operator's licence, those involved could be the directors or partners and the transport manager, and in this case all could request an inquiry—one inquiry would suffice for all. Drivers would be added to this list when special authorizations were involved and they too, can call for an inquiry.
The regulations containing the provisions which will allow an inquiry in camera have still to be made but I think we can assume that the scope will be limited. This assumption is based on the content of Section 87 which provides for a Transport Tribunal.
The Transport Act 1968 will generally change the face of a 30-year-old licensing system although the Transport Tribunal will remain the same and the Road Haulage Appeals Division will hold the scales of justice with equal poise. Three persons, consisting of a president, an experienced individual from transport or commerce and one experienced in financial matters, will judge the appeals of those who feel aggrieved by the decisions of the LA. To assist him further the president of the Tribunal may call on an assessor drawn from a panel appointed by the Lord Chancellor -for that purpose after consultation with the Minister or Secretary of State. Appeals against the decisions of the Scottish LA will be heard in Scotland.
A fee is payable with every appeal to the Tribunal and this is normally paid into the Consolidated Fund at the direction of the Treasury. This is not always the case, however, and where an appellant can satisfy the Tribunal that by reason of poverty it is reasonable to do so the Tribunal can direct that all or part of the fee should be returned to the appellant. To summarize:—
Public inquiries into applications for operators' licences will be held if the LA considers them necessary. Requests for hearings in camera can be made to the LA. Aggrieved persons have the right of appeal to the Transport Tribunal.