AFTER THE BATTLE
Page 71
If you've noticed an error in this article please click here to report it so we can fix it.
by JANUS
IT is almost possible to imagine a feeling of regret among some hauliers that there was not a different ending to the Merchandise Transport case. This is not to deny that their approval of the decision of the Court of Appeal was virtually unanimous. There may still be just a suspicion among some of them that the long-term effect of a decision in the opposite direction might have been more to their advantage.
At the time, the unprecedented reversal of a judgment by the Transport Tribunal seemed like a story-book finish. with virtue rewarded and the enemy discomforted. It established or confirmed the distinction that the Road and Rail Traffic Act of 1933 had sought to make between the carriage of one's own goods and carriage for hire or reward. The Court of Appeal decided, reasonably enough, that the trader who was entitled without question to a C licence for his own traffic, ought not to be allowed to put forward that same traffic as the justification for an A licence.
In expressing this opinion, the Court of Appeal was not merely falling in with the wishes a hauliers. Traders themselves for the most part either had no wish to carry traffic for other people or were anxious to avoid any demarcation dispute between A, B and C licences that might be taken as an excuse at some time for• interfering with the present unfettered right to carry one's own goods in one's own vehicle. '
That right has only once been seriously threatened or disputed, and that was during the heyday of nationalization. But a privilege is always subject to erosion, and there are still prominent members of the Labour Party who would welcome the opportunity to put restrictions on a C licence. Closer links with other European countries could represent another danger. It is with evident relief that British traders have learnt that, so far as can be seer, the danger is not great. All the same, it would be as well, when the time comes, to implement the common transport policy laid down bY the Treaty of Rome, that there should be no possible confusion about who is carrying whose traffic.
FOR one reason or another, all hauliers and most traders approved the decision of the Court of Appeal. So far as one can tell, it also interpreted the law in accordance with Government policy, although naturally this was incidental from the point of view of. the judges. There are grounds for believing that, had the decision gone the other way, the Ministry of Transport -would have found themselves giving serious consideration to an amendment in the law to establish the principle that the decision would have made untenable.
Exactly what shape the amendment would have taken it is difficult to say. The general principle is easy enough to enunciate. Its incorporation into the existing legislature would raise many problems, partly because the set of circumstances conveniently labelled as the Merchandise Transport case was. not of the kind that would readily occur to the legislators of 1933. Suffice it to say that the overhaul of the licensing law, if the case had gone the other way, might have been drastic.
The opportunity lay to hand in the Road Traffic Bill that is even now going through Parliament. Hauliers would not have looked forward to the prospect with unalloyed pleasure. Once the civil servants start tampering with legislation there is no knowing what unexpected and unpleasant amendments will come to light, and experience has shown that the plugging of a loophole sometimes leaves an even larger gap somewhere else. But at least the Government, once they had decided to take action, would have done their best to cover the situation as a whole and to remove all the incidental snags.
Whatever they may have had in mind,, they were probably more than pleased to forget all about it when they learnt that the decision of the Court of Appeal was in favour of the appellants. The Conservatives are accused often enough of unduly favouring their friends the hauliers. However justified the new legislation might have been, it would have presented a sitting target for the Socialists in Parliament, although they would be far from wanting to reverse the legislation if they got back into power.
.ANYWAY, all this is speculation. The Court of Appeal disagreed with the Transport Tribunal, and the Government were not called upon to decide whether or not they would have to change the law. The chance of amendment has receded, perhaps permanently. It is as they come to realize this than one or two hauliers may begin to count their richest gain as loss.
It is now clear that the Merchandise Transport case was clinically pure. It was no doubt chosen as a test case for this very reason. The same experiment, however, will only work again under the same conditions. Traders who had in mind following the example of Merchandise Transport may have been no more than momentarily checked. Where they still feel the compulsion to use their vehicles for hire or reward, they are trying out variations on both the Merchandise Transport and the Arnold themes.
For hauliers the difficulty lies in detecting each manoeuvre and taking early steps to counter it. The familiar pattern seems to repeat itself. That is to say, the concern in the initial stages may not necessarily be coupled With a large number of objections, and it is not always clear who would. be entitled to object. Once the danger is made sufficiently plain, of course, there is a gradual concentration of powers, that may ultimately lead up to a full-scale trial of strength before the Transport Tribunal, or even in the Court of Appeal.
There is still a problem in deciding where the main danger lies. It would be easy to follow any number of false trails, at the expense of a good deal of time and money, and yet to miss the real clues. Much attention is being paid at the moment to the series of applications for B licences put in by Unilever, Ltd., all over the country. The intention is to switch well over 100 vehicles previously on C licence. The general line of approach is that not more than 10 per cent. of the warehousing facilities provided by S.P.D., Ltd., a subsidiary of the Unilever group, are used by other traders; and that it would be advantageous for everybody concerned if S.P.D. were permitted to distribute the traffic they were storing
Most of the applications have been granted and in some cases there were no objections. On the face of it the decision may seem reasonable and to leave no grounds for an appeal. Hauliers are in the frustrating position of appreciating this and at the same time wondering suspiciously whether inaction would smooth the way for the establishment of some principle very much to their disadvantage.