Road Transport Bill, 1933—Committee (Resumed)
I move amendment 27:—
In sub-section (2), page 6, before paragraph (c) to insert two new paragraphs as follows:—
(c) whether such merchandise road transport business was at the critical date his principal business or a business ancillary thereto;
(d) if such merchandise road transport business was then an ancillary business, the prescribed particulars to distinguish such ancillary business from his said principal business; and.
The amendment proposes to add to the particulars which the section already requires to be submitted by an applicant for a licence the particulars mentioned. The object of this, of course, is clear, and effect will be given to the purpose for which these particulars are requested later. I raised this point on the Second Stage and I raise it on this amendment again. As far as the most recent Commission's report in England is evidence, the ancillary business has been discovered to be the main trouble and difficulty, and the method here of dealing with the ancillary user is apparently to make him a common carrier and so to drive him into a business into which he had no intention of going at the beginning.
I would prefer to have it that if these distinguishing particulars can be got, and I think they can, then they should be insisted on and when got, and when a licence is afterwards given on foot of them, that that licence would be one of a limited nature. In other words, if it is possible to get sufficient such particulars to distinguish a man in the transport business who wants to continue from a man who is simply carrying goods in a casual way, carrying mainly his own goods and then taking back loads, that it should be limited clearly and distinctly; not merely limited in regard to the class of goods which he will haul himself as a common carrier, but not allowed to become a common carrier even for the purpose of such traffic. I am pretty certain that the argument that is going to be used against this is the inevitable one of administrative difficulties. If it is possible to allow people to apply for a licence and describe themselves as common carriers for a limited class of traffic and thereafter to enforce whatever obligations they take upon themselves in regard to this limited or extensive class of merchandise, this does not add any special difficulty, and certainly none that is insuperable. The matter is important enough at any rate to have it attempted with a view to limiting to their whole usage the people who are, as I say, not in the business properly, but only in the business as an aside. This is only a preliminary amendment; the operative section is a later one, but it is obvious that if there is to be any distinction as between proper use and ancillary use you must get those particulars. I do not think it is a proper way of meeting the difficulties to drive everybody, whether he is an ancillary user or a proper user, into the traffic business as such.
There are three types of people engaged in the road haulage business. First, there are those who are in that business and no other business, that is, the bona fide hauler who is dependent upon his earnings from that business for his livelihood; secondly, there is the person who conducts a haulage business and also another business, but who is openly and avowedly in the haulage business, even though he may occasionally use the lorries available for that business for some purpose in connection with his other business; and thirdly, there is the person who is engaged in some other business, but uses his lorries on fairly rare occasions—when it happens to be convenient to himself—to carry goods for reward for a neighbour or townsman. In so far as the first class is concerned, that is, those who are road haulage contractors and nothing else, no question arises. They are entitled to get and will get their licence under the Bill, and it is mainly those people who will be of interest to the railway company when considering their policy in relation to the acquisition clause. In the second class there are, of course, people who vary from being at the stage where they are almost in the first class, to being at the stage where they are almost in the third class. Most of those people are, however, very definitely engaged in the road motor transport business. As such, they are entitled to apply for a licence and get a licence, and many of them are in that business to a large extent, even though they may have other business associations too. It is undoubtedly true that some person within that clause might apply for his licence, get transferred to his transport business all the lorries he had in connection with both businesses, replace them in connection with his other business, and thus become in the future a transport operator on a somewhat larger scale than he was in the past. That may happen. I submit, however, that the number of cases in which that is likely to happen is very small, and that in order to deal with them it is unnecessary to complicate the Bill with the number of additional provisions which the Deputy suggests, and which, by themselves, are not even sufficient to give effect to his intention. If those persons are genuinely in the road transport business, and conducting services which have been doing damage to the railway organisation, and if the railway companies desire to acquire control of these services they may do so, but if, on the other hand, their intention in acting in that matter was merely to enhance the price which would have to be paid for acquisition by the railway company, then, I think there is sufficient safeguard in the provisions of the Bill, which lay down that a Ministerial order becomes necessary before they can put themselves into the position that they must be acquired by the railway company. In such circumstances, unless their business was of definite value, such order would not be made.
In the third class, that is, those people who are mainly engaged in some other business, but very occasionally and only when convenient engage in the road transport business. I think there are fairly few who will be able to bring themselves within the definition in Section 2 of the Bill, that is "people who have been carrying on a merchandise road transport business." That phrase, I think, has a meaning sufficiently clear to exclude from it the person who only on rare occasions and when convenient to himself carries goods for reward. Such person is not in the road transport business; ordinarily he does not hold himself out as being in the business, but only takes advantage of it on particular occasions, for the purpose of earning money which he would not regard as part of his ordinary income at all. I do not think it is necessary that there should be anything additional in the Bill in order to deal with that class. In so far as they have been engaged in the road transport business, and held themselves out as such, then they are entitled to a licence, and—if their services are of sufficient value to the railway company—to be acquired by the railway company.
In the second class there is, undoubtedly, a possibility of some such development taking place as the Deputy is endeavouring to provide against in this section, but I do not think that the number is large, and I do not think that the difficulty raised is considerable. Certainly I do not think that the number is large enough or the difficulty considerable enough to justify the very many additional and complicated sections which would have to be inserted in the Bill. I do not like pleading administrative difficulty in connection with all these matters, but it must be realised that this is probably a type of Bill which creates more administrative difficulty than any other. In fact it is the very considerable administrative difficulty which is associated with measures of this kind that has, I think, delayed their introduction, and certainly that has made it such a highly contentious matter to deal with. We must try to minimise the administrative difficulties as much as possible. I think we have done so in the Bill as drafted, and if we were to try to provide against all possible developments that could be foreseen in connection with the road transport business then we could not succeed. We would produce a very complicated measure, which would be difficult to understand and difficult to operate, and would not fundamentally alter the position at all. I think we can afford to take whatever little risk is involved in the matter of which the Deputy speaks. It would be preferable to take that risk than to complicate the measure in the manner he suggests.
I should like further to argue this matter. The Minister's answer divides itself really into two points; one, that the chances of development of the type of business to which I refer are rather small; and secondly that the administrative difficulties of dealing with a section such as I have suggested would be very great. On the first point, the Minister says that the definition of merchandise road transport business would tend to cut out the more extensive use of his lorries by a man who has only had lorries ancillary to his main business. I wonder on what is that argument founded. The definition on page 3 is that merchandise road transport means the carriage of merchandise for reward by road in merchanically propelled vehicles. A man, therefore, can prove that he has carried for reward merchandise in mechanically propelled vehicles if he has a merchandise road transport business. Does he then qualify for an existing carrier's licence? He does, under the latter definition, if he carried on at some time between certain named dates a merchandise road transport business as previously defined.
Later, in Section 8 the applicant for a licence has to give particulars, and the relevant particulars to this amendment are that he must set out the number of mechanically propelled vehicles which, at any specified date between certain named dates selected by him, complied with the following conditions. What are the conditions? That he had lorries licensed, in use and available for the purposes of business? That is the definition that is supposed to catch out the ancillary user. Does it? If that is the only grip that the Minister has on the person that I speak of, then I think he evades his grip and gets in.
I think the statistics are unquestioned that out of the 8,000 lorries which were on the road at one time, only 2,000 were owned by the professional haulier; that 6,000 out of the 8,000 were owned by private persons, so that the danger to which I refer is not a small thing. In dealing with the 6,000 out of the 8,000 lorries it has, of course, to be borne in mind that some of the 6,000 lorries were in the transport business. In the main, they were not as professional road hauliers, but some fraction of them was used by people who were in the transport business. If we imagine the conditions here being in any way comparable to what has been disclosed in the Salter Report in England a very large proportion of these 6,000 lorries will be engaged only as ancillary to another business, and our scheme for dealing with these is under Section 12, by making all of them common carriers. Last night the Minister used an argument in response to an amendment of mine that it was putting an inducement on certain people to take out licences, and that his aim was to lessen the number of licences that would be applied for. Surely this section is an inducement to people to become common carriers for as much as possible.
Section 12 states that "Every licensee under a merchandise licence shall in relation to all the merchandise specified in such licence and in the area stated in such licence be a common carrier." Who is to be the judge of that, the judge of the merchandise specified in the licence? If that was going to be limited to previous user, and it was clear that the applicant could not get beyond that, then, of course, my point would be met, but I do not think that that is the situation. If it is not the situation, then I say that in relation to some proportion, I think the greater proportion of the 6,000 vehicles out of the 8,000 ordinarily operating on the roads, we are going to substitute a common carrier position for a specified class or classes of merchandise, instead of the class of business which was ancillary to business other than that of a road transport concern. I think that is aggravating instead of simplifying the problem. The danger is apparent and is great. If there were tremendous administrative difficulties it might still be necessary to look at this danger in the face and see what would happen. What are the administrative difficulties?
The amendment asks that a man should send in particulars which would show whether or not transport was the main concern of the applicant or whether it was only ancillary and to what degree it was ancillary. A later amendment of mine, No. 49, would limit the licence to whatever was the class of business the applicant carried on or had prior to making the application. It may be that that could be met in another way. I do not see it being met by anything I can find in the Bill unless it be something hidden somewhere in Section 12. If it is, then in so far as it is going to operate properly it meets the amendment, but I do not see it there.
What is the administrative difficulty under the new system? We are going to have a variety of licences going out to the 8,000 owners of lorries, and probably to a great many more. Assuming that the 8,000 are allowed to divide themselves according to the applicants' wishes into common carriers for various classes of goods, what is the difference between that and saying that, according to the particulars they send in they will be scheduled and classified and made common carriers only for the type of goods previously carried? I do not see any difference at all, nor do I see any administrative difficulties in the way. As I have said, I think that under the section as it is there is a considerable danger of an enlargement of the road transport business rather than a lessening of it.
In connection with what the Deputy has said I merely want to say this: that the expression "existing carrier" means someone who is carrying on a merchandise road transport business. The mere carrying of goods for reward on an occasion does not constitute a road transport business.
I think a person must have been ordinarily engaged in the business and have held himself out as being so engaged. Otherwise, I do not think he is entitled to come within the definition of an existing carrier unless he was so known to be engaged in the business of carrying goods on the road for reward.
Where is the definition of "carrying on a merchandise road transport business?"
There is no definition in the Bill. It is clear that the applicant for a licence under sub-section (2) Section 8 must specify the merchandise road transport business in respect of which he claims to be an existing carrier. He must state that he was during a specified period engaged in the business—not merely that on a particular date he simply carried home a load of merchandise some distance for reward. That interpretation of the section would obviously include a fairly large number of those whom the Deputy has in mind. I admit there is a section to be covered, but my argument is that it is so small that it is not likely to constitute a difficulty. There is no need, I think, to complicate the Bill with a number of provisions to deal with it. It would be unwise to undertake the administrative responsibility involved in dealing with that section as the problem there is so small. The administrative work which the Deputy asks us to undertake under his amendment is, by no means, inconsiderable. Under the amendment if we were to licence a person for a road transport business that was ancillary to some other business, then we would have to keep that person in that position. We would have to undertake responsibly to supervise his acts and operations and all the rest in order to ensure that the conditions of the licence were being observed. There would be no sense in putting conditions in a licence unless it was intended to enforce them. These conditions would require us to ensure that the road transport business remains subsidiary to the main business, that the person did not cease to operate the main business, and that the merchandise road transport business was carried on in the same manner as it was carried on during the specified period. I presume that that means that if it was carried on in a haphazard manner and just for occasional loads it should still be carried on in that manner under the licence. The supervisional examination that would be involved by this would be considerable and it would also involve a lot of trouble for applicants for licences who, under any circumstances, are entitled to carry on their business under the Bill unless and until required by the railway company. I am not arguing this merely for the sake of argument. If I felt that these people carrying on two businesses in that way might possibly act in the manner in which the Deputy fears they would act, then I feel that something should be done; but I feel that they will not act in that manner.
Your argument is that they cannot.
No, I think they will not. I am talking of the man who, because he has a lorry, occasionally carries goods for a reward. I do not think that the majority of people coming under that category will be able to establish that they have been able to carry on a road transport business at all and they will not be liable for a licence.
There is another class of people in the road transport business who also engage in some other business. The argument has been advanced that these people may transfer to the road business all the vehicles used in both businesses and thus represent the road transport side of the business as being larger than it has been, consequently putting themselves in the position of being able to demand a higher price in the event of the compulsory clause coming into operation. That is the only danger—that that might happen —but the number of people who are likely to do that is very few, and those who do that are likely to find themselves disappointed when their application under the compulsory clause is refused.
I understood the Minister's first answer to me to be that a certain number of these people could not get licences.
A number of what I call Class 3.
If the Minister will tighten up his Bill so as to make sure that those people cannot get licences, then a certain part of my objection is gone, but I do not think that that is there. The Minister refers me to the definition of existing carriers and he is going to found, apparently, a lot on the class of business. Was it in an actual business the man has been carrying on, if it is even for himself, and two others ancillary to a main business, such as a grocery business? Supposing it does not fit in under the very large definition, if that is to be described as a business I do not think anybody can get in. If it is meant to exclude him, then tighten up the Bill to that extent and it will meet some part of the difficulty. I do not think it meets it at all. All the man has got to prove is that he was carrying for a reward between certain dates in such a way that it emerges as a business. It might be a very small business, but it is a business. That is the beginning and the end of it. Thereafter, he has got to choose for himself the number of lorries he had, either in use or available for use, in such very small business, and then he gets the unladen weight of those fixed and then afterwards he becomes a common carrier on such unladen weight of lorries. That, I think, is the danger.
On the question of administrative difficulty, what is the difference between these two positions? Take a street in Dublin, hereafter, which contains five people who are going to get licences. I do not know what the classification of licences is going to be on these—whether it is going to be the very simple classification established by the Railway Tribunal or the more numerous classification established since the activities of the Railway Tribunal took place. Let us suppose that it is the more numerous classification. You will have these people in Dublin certified as common carriers for some portion of these numerous classifications and criss-crossed in and out as between the different uses, and there is to be supervision to see that one man does not carry something that he has not held himself out as a common carrier for the purpose of carrying, and to see that another man is complying with the conditions of a common carrier. That is the one situation for which the Minister is heading. That is the particular thing which he is facing, not with equanimity, but because he thinks he can get over it in some way. I suggest to the Minister to simplify it. In my amendment No. 49, once the main business fails the ancillary business is also wiped out. The second point is that the man will not carry on in any line other than the ancillary line as long as the business continues. Let the Minister think of that in terms of classification of merchandise. I do not see any difficulty in it. In this amendment, I have taken the (c) part of the amendment as being very much the same as the (b) part, and I would interpret the phrase "in the same manner" as meaning the same number of lorries used in regard to the business in the same ancillary fashion. Let us cut out that phrase if it causes difficulty and keep the other two. First of all, the ancillary business goes once the main business goes, and consequently as long as it is going to be used it is going to be used in an ancillary way. It is not going to be any more difficult to do that than what he is doing. As far as the administrative difficulty is concerned I do not think there is any answer. I think there is a problem, and I do not think the problem is met by what the Minister has said. If the Minister will move later on to amend it so as to enable him to cut out the man who has not been in the transport business at all, then I would support it; but the ancillary use has been the whole blot and difficulty throughout. I think it is a blot on the Bill by saying that every ancillary, hereafter, becomes a common carrier. I think that the Minister is causing more congestion by this.
There is one question I should like to ask the Minister. Deputy McGilligan has been more or less skirting around the question but I do not think the position has been cleared up. I should like to ask the Minister to say what is the position of a trader who could not be classified, by any stretch of the imagination, as a carrier, who merely delivers his own goods but occasionally is asked by the customer, either for a consideration or very possibly for no consideration, to carry some parcel of goods to a place for this customer—is that merchant liable to prosecution under this Bill for what I call doing a casual——
It certainly has nothing to do with this amendment.
He can very easily get into the ancillary business.
That is the point I am raising—"whether such merchandise road transport business was at the critical date his principal business." I have prefaced my remarks by saying that under no stretch of the imagination could he be described as a carrier or holding himself out as a carrier. Take the position of a trader who is asked to do casual jobs for customers, such as bringing a bed to the seaside or a sack of potatoes back from the country. Is he liable to a prosecution? If his employee does it sub rosa will the employer be held to be the guilty party?
If carried for reward, yes; if not carried for reward, no.
If there is no consideration there is no question raised.
There might be a tip afterwards.
I wonder how Deputy McGilligan would solve this question. Many lorry owners start with a lorry and later add a public garage, or they start with a garage and get into lorries. Which is the ancillary business and which is the main business?
That is a question of evidence.
The difficulty will occur in many cases. It will be a big proportion of the class of cases to be dealt with under the Act, especially if the amendment is passed. A man sometimes buys a lorry with the intention of going into the carrying business. He then finds that the only way to make the lorry a paying proposition is to add a public garage so as to get trade terms for the motor goods he is using. In the other case a man starts a garage and finds that there is not a living in it, hence he adds a lorry and engages in haulage business. These two are interdependent. Take away one and the other will go. It would take a very wise judge to decide which in that case was the ancillary business.
Might I point out that a garage does not carry for reward. A garage is not dealt with in this Bill.
The man will answer that question himself and under my amendment will be examined on it.
How will he answer it? If you take away one side both sides go, seeing that one cannot exist without the other.
What is garage introduced for except as being a relief for this measure? It is the lorry we are dealing with.
I think Deputy Moore has put a question that the Deputy cannot answer.
I will answer it but I would require such particulars as would distinguish one from the other.
I think the Deputy would require more particulars than he would get in one, two or ten years.
I do not know if it is possible to get a line-ball case immediately distinguished.
These cases would be numerous all over the country. Unless the matter is made clear in such cases the Deputy's amendment should not be passed. I hold that as these cases would be so numerous it is very important they should be borne in mind.
I prefer an answer to the general question. The Deputy would have to give precise particulars, and I am not bound to answer any such questions. If the general problem is put to me I would like these distinctions which are not inseparable rather than have to meet them in a haphazard way as to whether there is an ancillary business to the main business.
Deputy Moore suggests that this section deals with licences for carriers.
There is a proposal in the amendment we have been discussing that an applicant for a licence to carry on a road transport business, and who happened to have some other business, such as a garage, should be required to state which business was the principal business. If he states that the garage business was the principal one, then the Department of Industry and Commerce would withdraw his licence, if at any time the road transport became more important than the garage business.
If the garage business disappears the licence is wiped out. If the principal business became more important than the garage business——
If he uses it and carries it on otherwise than an ancillary business. In other words, he is not to be allowed to extend his motor transport business. That is the aim of the licence.
Supposing he says that the motor transport business is the main business, who will contradict him?
The only persons who can are those who have opportunities of judging.
And the administrative responsibility?
It is there with the granting of a licence.
My problem is, can we afford to ignore the risk?
The difficult situations are going to be less because they will be the precursors of the already small group.
No. If the Deputy proposes regulations which are designed to deal with the small group they must apply to everyone. The regulations apply in respect to other applicants and to everyone who gets a licence. That is precisely my case, that it is unnecessary to put in these conditions to apply to everyone in order to bring in a small number. I think we can afford to take the risk, and that it is necessary to put a very small number of people into a more favourable position than they would otherwise get under the Bill, in return for the comparative simplicity that the Bill provides as it stands without amendment.
Will the Minister admit this as a likelihood, that if he gets an applicant to convince him that he is in the road transport business, and after that gets a variety of particulars of the unladen weight of the lorry, which was assigned to him, he can load any goods he cares to become the common carrier of at that weight? He goes into the business and can become the common carrier of one thousand articles that he never carried before.
The Deputy thinks that in making these people common carriers we are conferring some advantage on them. It is the reverse. We are conferring a responsibility upon them. The railway company are not common carriers for live stock because of the responsibility attached to the term. We say that everyone who proposes to carry merchandise on the roads shall be common carriers. That is an additional responsibility.
Surely it is distinct. Do not hide it. Surely when a person becomes licensed under the measure the unladen weight is the important foundation, and he should not hold himself out as a common carrier. He is in the transport business now where previously he was not. That is what I object to.
Amendment by leave withdrawn.
I move amendment No. 28:—
In sub-section (4), line 16, before the word "require" to insert the word "reasonably."
Amendment No. 54 is somewhat similar.
It has the same wording but it has a different application. The meaning of this amendment is obvious. A person who applies for a licence under this section is bound to furnish such information as the Minister may require. I merely want to say "as the Minister may reasonably require."
I think the Dáil must assume that no matter what changes of Government take place the Minister for Industry and Commerce is going to be a reasonable person. I think it is fairly reasonable to assume also that, if that be so, it would be unnecessary as well as unwise to amend the Bill as the Deputy suggests, because the introduction of the word "reasonably" does not make the Minister any more reasonable but it does introduce the possibility of an appeal to the courts, which it is not intended to provide. I think the Deputy may be reasonably certain that under any circumstances the Bill is going to be administered in a reasonable manner and that consequently an amendment of this kind is not necessary.
If the Minister is reasonably certain that the Minister's successor will be as reasonable as he assumes, then he can be absolutely certain that there will never be an appeal. Then why object to it?
May I point out that the Deputy assumed his own reasonableness when as Minister he drafted the Transport Act of 1932?
The introduction of the word "reasonably" does astonishingly give a citizen the right to appeal to a court of law. That course of procedure is, of course, very unpopular with the Minister. He likes to be a dictator and that is his sole purpose in refusing to accept this amendment. The Minister is constantly coming in here and saying: "I shall have to answer to the House for any wrongful action." That is one of his favourite clichés. Then when he is asked to answer for some action, he says that it is not in accordance with public policy to do so.
He has said neither one nor the other to-day.
That is his reply as a reasonable man. Surely, if the Minister is as reasonable as he believes himself to be, he need not have any fear of an appeal to the court. People are not fools. They do not go to court for the mere sake of going there. They only go to court when it is manifest that the Minister has done an injustice. The only remedy available here would be a very expensive Chancery remedy. If the Minister admits the word "reasonably" here, he does not make the administration of the Bill a bit more difficult, but he does preserve an enormously important principle and that is the right of the humblest citizen in the country to appeal to the courts against an action of the most exalted Minister of State. That is a terrific safeguard. An appeal of this kind may never arise, but the House should always insist, in every Bill where the Minister's right to make regulations is involved, on certain minimum requirements. The Minister's powers should be limited by the right of a person to appeal to a court for a declaration that what the Minister wants cannot be reasonably asked for, and that he is deliberately using a section of the Act for a purpose for which it was never intended. That would be the only reason why the court would cross the Minister, if this word "reasonably" were introduced. The person would have to go into court to prove that the Minister had deliberately used the sub-section for purposes that the Legislature never intended, and until and unless he proved that, the court would provide no remedy. If he were able to prove that the court would intervene and would issue a writ of mandamus or some other form of writ to the Minister to compel him to do whatever the statute required. Surely the Minister will make this gesture. It does not make any great difference. An appeal will probably never arise, but it does protect an enormously important principle that is very valuable to the man in the street or the humble citizen of the State.
If the Minister is going to persist in his attitude he has erred slightly, because he has let in the phrase "for the consideration of such application." Why does he not stop short at "as the Minister may require"? It is quite possible that people may go into court on the strength of that phrase. He submits himself to the possible indignity of being brought into court on that phrase.
I followed the very excellent example of the Deputy in the Road Transport Act of 1932.
The Minister seems to think that is an answer. It may be a retort but it is no answer.
Nobody has suffered by the absence of the word "reasonably" from the text of the Road Transport Act, 1932. It is only in Deputy Dillon's imagination that these things arise now. That detective post is still open.
The Minister is in very good humour this evening. As a matter of fact under some of the legislation pushed through the Dáil by Deputy McGilligan in connection with the Electricity Supply Bill he got powers of that kind under which he could make all sorts of extravagant regulations. These regulations worked grave hardship but when people went into court they were told that, because that word was omitted, the courts could not interfere even though they felt that grave hardship was being inflicted. Because Deputy McGilligan succeeded in pushing the Act through the Dáil without these words the court was impotent and could not interfere. There is one section of the Electricity Supply Act under which I believe the Minister could plant an electric lighting pole in your drawing room.
If the Dáil gives a Minister powers of this kind it is necessary to have an appeal against his decision. This is what the Minister wants to do here. He wants the required information and that is the end. You cannot ask him why. You cannot say it is quite unreasonable or you cannot say "you are simply asking for the information with a view to blocking my legitimate application." You have to give it because if you do not give it, he will turn down your application. By refusing to accept the word "reasonably," the Minister refuses to restore the right to appeal to a court in the matter. Why? Because Deputy McGilligan did it three years ago. That answer was all right once or twice but I think we have had enough of it. I have described it once or twice before. I think the less flag wagging that is done the better. There is no use in trying to step up on Deputy McGilligan's shoulders. When the Minister has done as much as Deputy McGilligan in the public service he may have certain rights but he should make up his mind for himself now and not be dragging in Deputy McGilligan's name so frequently. The thing is right or wrong and I hold it is wrong.
The Minister in defending the sub-section as it now stands has, not for the first time since he came here, quoted the example set up by his predecessor under the 1932 Act. He would be well advised to stick to the example of the Minister whom he replaced, in so far as it applies to other aspects of the Bill. His predecessor, in asking for the powers set out in the 1932 Act, did not ask for the dictatorial powers which the Minister is looking for here, and which I hope he will not get from the House under this Bill. He is certainly setting himself up as a transport dictator, in effect, and I think there is a good case in favour of the amendment proposed by Deputy McGilligan. He talks about creating new difficulties and new administrative responsibilities.
I did not say a word about that on this amendment.
You have been advancing that as an argument against every amendment.
Not against this amendment.
This section of this Bill——
We are not discussing the section.
We are dealing with the administrative difficulties.
On a point of order, I submit that we are not discussing the section.
The amendment under discussion is number 28, which deals with the insertion or noninsertion of the word "reasonably" and with nothing else.
The question of dictatorship is clearly relevant.
I submit that I am at liberty to make reference to what the Minister said in opposing the amendment put forward by Deputy McGilligan. Otherwise the Minister must have been out of order in the observations he made.
My observations were quite in order but the Deputy has not quoted one of them yet.
The Minister is supposed to set good example in debates in connection with this amendment and other amendments. There are very good reasons for the amendment and I strongly support it. The Minister is looking for dictatorial powers in this section and in other sections of this Bill and I hope the Dáil will modify those powers before the Bill becomes law.
The Deputy is deserting the railways now.
I will ask you to follow the good example set by your predecessor when other portions of this Bill come to be discussed.
Deputy Dillon has referred to the Electricity Supply Board. There is no necessity to go so far back as that. Deputy Dillon was, I think, in this House when the present Minister wept over the hardship he had to inflict on certain people who applied to him under the 1932 Act. He regretted that he had not been given power to grant licences. Although I pointed out to him that the particular section he said he was operating contained the phrase "without prejudice to his absolute discretion," the Minister apparently thought that because there was not some word definitely and clearly giving him responsibility, he could not give the licences. He was quite annoyed to think of the number of people from whom he had to take licences and whose applications he had to refuse when, if words of this modifying type had been in, he might have acted differently.
Let us leave aside this question of whether another Act has this word or not. If the Minister is affected by reason of the contrast between the Act passed in 1932, which had not the word "reasonably," and the insertion of the word here, if he thinks that there is any idea that there is a likelihood of unreasonable conduct, then, so far as I am entitled to say it, I may say that I do not believe there is going to be unreasonable conduct. But because there may be an odd case, an exceptional case, a very improbable case of the unreasonable use of this power, the word ought to be put in. To go back to what I said at the beginning, if the Minister has the belief that there is going to be no misconduct by himself or anybody who succeeds him, then it is absolutely certain that there will never be an appeal to the court. But this will keep us more in line with what we all profess to admire—liberty —and it will be for impartial judges to decide if that liberty has been encroached upon. I ask the Minister to forget what happened in connection with other measures. If only as a gesture to the impartial judges who will be the people to safeguard rights if encroached upon, he should admit the word "reasonably" in this and other sections.
The Deputy is right in saying that in so far as any action by the Minister is concerned, it is unlikely to give rise to "unreasonable conduct" but if we are going to put in words like this here and there we will find that the administration of the statute will be held up by frivolous appeals to the court.
They may be prepared to do that. Why stick in, in every one of these Bills, little words of this kind which have no real importance and which nobody sought to insert in similar sections in Bills which have been passing through this Dáil for ten years? Nobody can produce a single case in relation to any of these corresponding sections of action taken which was prejudicial to anybody. Until that is done, I do not see why we should discover a new principle.
Did you not say that you had experienced hardship in the cases I mentioned?
I said that I had to direct administration one way or tear up the Act altogether. I was not referring to questions of drafting.
I shall refer to two cases which will illustrate the position further. The Shannon Electricity Board came into the town in which I live, and the work of erecting electric light poles was proceeded with. One of these poles required to be stayed and, to my mind, wholly unreasonably, they proposed to put a stay-wire into a very high wall for which I was liable. I took the view that if they did that they would imperil the structure of the wall, and might involve me in heavy damages and in great inconvenience. I said that I would not allow them to put it in. They informed me that they did not ask me for leave, that they were going to do it. They went down the street to a neighbour and proceeded to act in the same way in connection with his window sill. When he protested that the premises would be disfigured, they said that they were not interested to hear his observations, that they were going ahead and that they only dropped in to tell him. When I consulted my legal advisers and he consulted his, we were informed that we had no remedy, that the Shannon Electricity Board had the right to do these things if, in their judgment, they were deemed necessary. We had no right to go to the court and ask to have them restrained on the ground that we did not think their action was reasonable.
When the Minister for Local Government was putting through the Road Traffic Bill, Deputy Moore raised the point that a Guard ought not to be given power to ask a man's name and address unless he had reason to suspect the commission of a crime. The Minister for Local Government agreed with that, said that he had noticed the omission and promised that he would have the section re-drafted to provide that before either a Minister of State or a Guard makes a requisition on a common citizen, he must have reasonable grounds for so acting, and be prepared to prove to the court that he was acting reasonably in requiring the information. The moment that was put to the Minister for Local Government, he undertook to have the section re-drafted and to make the necessary provision.
I put these two points before the Minister. They are not exactly parallel but they enshrine the same principle. I felt that I should have a right to go to the courts, let the E.S.B. put their case against mine and let a fair judgment be given between us. I should be quite content with that. But I resent, and everybody resents, the position in which a public Department can hold a pistol to your head while you have no remedy—no right of appeal. That may never arise here. But if the Minister will yield this trivial point—it would not cost him much to do it—it would place on record the resolve of the Dáil to protect the right of the citizen to go to the courts and seek redress for any infringement of his liberties.
To add to what Deputy Dillon has said, may I put it that as the person who gave that particular board all these powers, the Minister knows, by access to files, that I wrote to them on many occasions pointing out the excessive user they were making of these powers and threatening them with amending legislation if they did not desist?
I am sorry the Deputy has taken that line. I was going to congratulate the Deputy on having taken these powers in relation to an undertaking such as the Shannon Scheme. I hope if I have anything to do with legislation relating to an undertaking of the same magnitude I will be in the position to take equally wide powers in order to put it through.
And if the Minister has the same experience as I have had, he will regret it.
Question put: "That the word ‘reasonably' be there inserted."
The Committee divided: Tá, 36; Níl, 62.
- Alton, Ernest Henry.
- Anthony, Richard.
- Bennett, George Cecil.
- Coburn, James.
- Corish, Richard.
- Cosgrave, William T.
- Curran, Richard.
- Davin, William.
- Dillon, James M.
- Dockrell, Henry Morgan.
- Doyle, Peadar S.
- Esmonde, Osmond Grattan.
- Fagan, Charles.
- Fitzgerald, Desmond.
- Fitzgerald-Kenney, James.
- Good, John.
- Haslett, Alexander.
- Hogan, Patrick (Clare).
- Keating, John.
- Kent, William Rice.
- Keyes, Michael.
- Lynch, Finian.
- McGilligan, Patrick.
- McGovern, Patrick.
- McGuire, James Ivan.
- McMenamin, Daniel.
- Morrisroe, James.
- Murphy, James Edward.
- O'Connor, Batt.
- O'Donovan, Timothy Joseph.
- O'Mahony, The.
- O'Reilly, John Joseph.
- Pattison, James P.
- Roddy, Martin.
- Rogers, Patrick James.
- Thrift, William Edward.
- Aiken, Frank.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Bourke, Daniel.
- Brady, Brian.
- Breathnach, Cormac.
- Breen, Daniel.
- Briscoe, Robert.
- Browne, William Frazer.
- Concannon, Helena.
- Corkery, Daniel.
- Crowley, Fred. Hugh.
- Daly, Denis.
- Derrig, Thomas.
- De Valera, Eamon.
- Doherty, Hugh.
- Doherty, Joseph.
- Dowdall, Thomas P.
- Flynn, John.
- Flynn, Stephen.
- Gibbons, Seán.
- Goulding, John.
- Hales, Thomas.
- Harris, Thomas.
- Hayes, Seán.
- Houlihan, Patrick.
- Jordan, Stephen.
- Keely, Séamus P.
- Kehoe, Patrick.
- Kelly, James Patrick.
- Kelly, Thomas.
- Kennedy, Michael Joseph.
- Kilroy, Michael.
- Kissane, Eamonn.
- Lemass, Seán F.
- Little, Patrick John.
- Lynch, James B.
- MacEntee, Seán.
- Maguire, Ben.
- Moane, Edward.
- Moore, Séamus.
- Moylan, Seán.
- Murphy, Patrick Stephen.
- O'Briain, Donnchadha.
- O'Dowd, Patrick.
- O'Grady, Seán.
- O'Kelly, Seán Thomas.
- O'Reilly, Matthew.
- Pearse, Margaret Mary.
- Rice, Edward.
- Ruttledge, Patrick Joseph.
- Ryan, James.
- Ryan, Martin.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Richard.
- Ward, Francis C. (Dr.).
Tellers:—Tá: Deputies Doyle and Dillon; Níl: Deputies Moore and Goulding.
Amendment declared lost.
Section 8, as amended, agreed to.
(1) Subject to the provisions of the immediately preceding section, the Minister shall grant a merchandise licence to every authorised (merchandise carrying) company or shipping company which at any time applies to him for such licence in accordance with the said section.
(2) Subject to the provisions of the immediately preceding section, the Minister shall grant a merchandise licence to every existing carrier who before the appointed day applies to him for such licence in accordance with the said section.
(3) Where an application is made in accordance with the immediately preceding section after the appointed day by a person who is neither an authorised (merchandise carrying) company nor a shipping company for the grant of a merchandise licence to carry on a merchandise road transport business in respect of a specified class or specified classes of merchandise in a specified area, the Minister may grant such licence to such person if he is satisfied that—
(a) the existing merchandise road transport facilities in such area are inadequate, and
(b) no authorised (merchandise carrying) company is willing to undertake the supply of adequate merchandise road transport facilities in such area, and
(c) the grant of such licence to such person is desirable in the public interest.
(4) The Minister shall not at any time grant a merchandise licence to any person other than a person to whom the Minister is required or authorised by this section to grant a merchandise licence.
(5) In this Act the expression "merchandise (existing carrier's) licence" means a merchandise licence granted to an existing carrier in pursuance of sub-section (2) of this section.
I beg to move amendment 29:—
In sub-section (1), line 31, to delete the words "or shipping company."
This amendment is consequential on No. 5.
Amendment agreed to.
I move amendment 30:—
In sub-section (1), line 32, to delete the words "at any time" and substitute the words "before the appointed day."
This rules four or five other amendments, possibly down to amendment 36.
Yes, it rules amendments 32, 33, 34 and 35. All these go together. I do not move this amendment with any enthusiasm. It is more in order to get clarification than anything else. The Minister must grant a merchandise licence to an existing carrier if the existing carrier applies before the appointed day. That is the provision in sub-section (2). Under sub-section (1) he must grant it to any authorised (merchandise carrying) company or shipping company which applies for it at any time. Subsections (3) and (4) lay down that if an application is made after the appointed day by a person who is neither an authorised merchandise carrying company nor a shipping company, the Minister may grant such licence if he is satisfied that no authorised (merchandise carrying) company is willing to undertake the supply of adequate merchandise road transport facilities in such area. Of course the over-riding consideration always is that the granting of a licence is desirable in the public interest. It is open to the Minister to grant such a licence either to an existing carrier or to an authorised (merchandise carrying) company, whether they apply before or after the appointed day. I want afterwards to rule out as one of the items set out as terms of reference to the Minister, "that no authorised (merchandise carrying) company is willing to undertake the supply of adequate merchandise road transport facilities in such area." If my amendment were accepted I think that the Minister, on application made to him by an existing carrier after the appointed day, would find out whether the authorised company was willing to undertake the carriage of the traffic in a particular area. If that company were willing to undertake it, he would grant it to that company in the first instance. I think that is provided for in the scheme, but I do not see why it should be tied up with other circumstances warranting a change in policy when that change in policy would involve a change in legislation. My amendment will allow the Minister to carry out his policy, but it will prevent him from carrying out another policy. I do not think that in the future somebody else having charge of this measure should be put to the trouble of having to amend it at a later date.
It is on that point that I disagree with the Deputy. There is a very definite policy involved in this Bill. It is a policy which has the approval of the great majority of the members of the Dáil. If at a later time the Executive Council decides that that policy should be changed, then they should come to the Dáil for the purpose of changing it. The Bill, as it stands, envisages a situation that after the appointed day road transport operators will be limited in their numbers, and also limited in the extent to which they are engaged in the business. After that no new road transport developments will take place except on the initiative of a railway company, the tramway company, or a shipping company, or in the circumstances envisaged in Section 3—where a service is required and no railway company is willing to undertake it. In such case the licence would be given to an independent operator who would have his licence secured to him so long as he complied with the conditions.
What is contemplated on the face of this sub-section is an independent operator coming to the Department of Industry and Commerce and applying for a licence to run a service in a particular district. The Department of Industry and Commerce would then go to the railway company or to the shipping company and say to them "are you willing to run this service?" Only in the event of a refusal on the part of the railway or shipping company would the licence be granted to the original applicant. A much more likely event would be that representations would be made from some area that a road service was required for the convenience of trade or the convenience of the public in a particular district. If the Department of Industry and Commerce on examining the matter became convinced that a service was required they would make representations to the particular railway company and in the event of their refusing to undertake it, let it be known that an application for a licence from some independent operator would be likely to be favourably considered. That is the more likely course of events.
I think the section as it stands in the Bill should continue to stand and not be amended as suggested by the Deputy, so that it will be quite clear and definite in everybody's mind that after the appointed day any increase in the road transport organisation of this country is going to be undertaken by the railway company or the other persons who may be authorised under various conditions, as set out in the Bill. If there is power to grant a licence to an individual on grounds of public interest, then applications are going to be made, pressure of one kind or another is going to be brought for the purpose of getting the licence granted, and although every such application may be refused, nevertheless, a considerable amount of difficulty may arise out of the refusal. It is much better that we should be able to say to such people that we have no power to give a licence, rather than that we should have to say that having considered the matter we have decided not to give a licence. The Deputy, I am sure, will remember from his own experience in administration that it is always preferable to be able to point to a definite barrier of that kind than to have to set forth facts and reasons why descretion should be exercised in a particular manner. In so far as that is the definite policy, the declared policy of the Executive, the policy approved not merely by the Government Party but the other Parties in the Dáil, I think it should be clearly stated in the Bill, so that nobody would have any idea that by any of the devices usually adopted on these occasions he could get a licence in a manner which would be contrary to that policy.
I think the Minister is right in this matter. I did not gather from Deputy McGilligan's remarks what he proposes to gain by his amendment. It seems to me definitely to have the effect of cutting away the chance of development of merchandise traffic in new areas from the established merchandise carrying companies. If he thinks there is any advantage to be gained he should explain it.
I was somewhat confused as to what is the purpose of the amendment. As far as I can see, sub-section (1) gives an authorised undertaker within the meaning of the Act a mandatory right to demand from the Minister a licence at any time to operate the merchandise traction business in any area at any time. An existing carrier has only up to the appointed day to exercise that right and after that he shall not have it.
Cannot get it after the appointed day. Sub-section (2) reads: "Subject to the provisions of the immediately preceding section, the Minister shall grant a merchandise licence to every existing carrier who before the appointed day applies to him for such licence in accordance with the said section." There is nothing in that which says that the Minister may not grant it after the appointed day. He is bound to grant it before the appointed day, but he may grant it, so far as this section goes, after the appointed day.
No. Read sub-section (3).
Then we come to the sub-section which provides that where an authorised undertaking will not fill the gap, where the Minister can find no one to fill the gap in an area which is not properly served, he can give a licence for that area. The only effect of the amendment seems to me to be to withdraw from the railway company and the authorised undertakers within the meaning of the Act a certain privilege they have to take any new route that turns up, or any new area that it seems to be right and proper to develop. They have that right under the Bill. It is only when they fail in that, when the Minister has nobody else to turn to, and there is a necessity for a transport service—in these unthinkable circumstances that he can give a licence to somebody else. It seems to me that if we are to aim at unification it would be folly to withdraw this privilege from the railway company and it is a privilege, taking everything into consideration, that they are entitled to; not only the railway company but the other authorised undertakers, tramway companies and shipping companies. I have not heard from Deputy McGilligan so far—perhaps he has something more to say—anything which would encourage one to withdraw that privilege from the authorised undertakers.
I said at the beginning that I moved the amendment with very little enthusiasm because I did not think there was a very big point to be made. There is a point, however, and I want to explain it. To simplify the matter, let us speak of the railway company instead of the merchandise carrying companies, because there is only the railway company in it. As the section stands, the scheme is this: A railway company applies for a licence, and the Minister must grant it whether that application is made before or after the appointed day. If an existing carrier applies before the appointed day the Minister must grant a licence. If the application is made after the appointed day by a person, not the railway company, the Minister then may grant the licence, but only if he is satisfied about certain things. The important thing is that the railway company is not willing to supply adequate transport facilities in the area. That is the present scheme. I approve of that policy. I want the railway company given the first chance to develop new routes, to cover any route that is not covered by an existing carrier, or where they think they can cover an area better. The Minister is only bound to grant a licence either to the railway company or to an existing carrier if the application is made before the appointed day. If it is made after that the Minister, in furtherance of his present policy and in present circumstances, ought to grant the licence to the railway company, and he can do that without my amendment. I simply say, is it possible that circumstances will develop to the point that the railway company, although professing to supply an adequate service, will not supply it? The Minister operating this Bill has, in fact, to supply it, and to stir the railway company into better activity he has this threat that he will give somebody else the licence for that area. I say that the circumstances do not appear to me likely or probable at the moment, but they might occur. Supposing there are new circumstances and that in fact, the railway company finds itself hampered so that it is not able to undertake this; that it might profess itself willing but not able to undertake it. Is it right to throw upon any Minister, or the same Minister wanting to operate a different policy, the necessity of coming to the Dáil to get legislation?
The section says that the Minister may grant a licence if he is satisfied that the existing merchandise road transport facilities in such area are inadequate, and that the granting of such a licence to such a person is desirable in the public interest. The third is, that no railway company is willing to undertake the supply of adequate road transport facilities in the area. There is on that a point as to interpretation, and I think the amendment clears the ground, leaving more freedom to the Minister. I do not want him to change the policy. I want the policy to be kept so as to give the railway company every chance, but I do not want to tie ourselves to the railway company. There is not a great deal in it.
There is a point which the Minister made which certainly carried conviction to me, and that is, influential local people coming forward and saying that Pat Williams is an awfully decent man, that he has seven small children, and that he will run a suitable vehicle if he is let do it; that the railway directors are all fat, rich men and he is a poor innocent man. As the Bill stands, the Minister is in a position to say that he has no power to grant a licence. We know the power of the Fianna Fáil Clubs.
I am against Deputy McGilligan for the same reason that I was against the Minister in this matter, that this would give the Minister greater discretion than the Bill means to give. It would enable him to change his whole policy. If the railway company, or the carrying company, does not want a particular licence, it will not apply for it, and the necessity for getting a licence will not arise.
No, but the circumstances may be that they may want rather to spoil the pitch for somebody else, but not want to operate.
Then the Minister can come down on them.
I see the Deputy's point —that the railway company might be willing to run the service, but not able to do it?
Unable to do it adequately.
If the railway company fails to supply a service that is required in the public interest a licence can be given to somebody else. That is the definite intention—only if the railway company is unwilling. I am including in "unwilling" the term "unable." I may say that I am not willing to buy the railway company to-morrow, merely because I am unable to do so. I think one would include the other. Unwilling in that sense means unwilling to do it because—for some financial or other reason—unable to do it.
Is there not a difference between that sub-section as drafted and a sub-section which might read: "willing to undertake and undertakes"?
Is provision not made in Clause (a)—"the existing merchandise road transport facilities in such area are inadequate"? Is not that quite sufficient, apart from willingness or otherwise?
Under the scheme of the Bill the railway company has first choice. If a service is required, the railway company must be given an opportunity of providing it. It is only if they refuse, or for some reason do not provide the service, that a licence can be given to somebody else.
Taking that power in Clause (a)——
The point might be met if we put down an amendment as follows: "any authorised merchandise carrying company is willing to undertake and undertakes", or some such wording as that. Not merely must it be willing, but it must do it.
What will determine whether any service is required?
That is at the discretion of the Minister. He would have to undertake local inquiries, and would probably not consider the matter at all except on local representations.
Surely Clause (c) covers that.
Amendment 30, by leave, withdrawn.
I move amendment 31:
Before sub-section (3) to insert a new sub-section as follows:—
(3) Subject to the provisions of the immediately preceding section, the Minister may if he so thinks fit grant a merchandise licence to any shipping company which after the appointed day applies to him for such licence in accordance with the said section.
This amendment is consequential on one we discussed yesterday.
May I take it that the phrase "if he so thinks fit" is synonymous with "if it is desirable in the public interest?"
Amendment No. 31 agreed to.
Amendment 32, by leave, withdrawn.
I move amendment 33.
In sub-section (3), lines 40 and 41, to delete the words "who is neither an authorised (merchandise carrying) company nor a shipping company" and substitute the words "other than an authorised (merchandise carrying) company."
This is a consequential amendment also.
Amendment 33 agreed to.
Amendments 34, 35 and 36 not moved.
Section 9, as amended, agreed to.
The Minister before granting a merchandise licence to an existing carrier in pursuance of an application shall—
(a) in case any of the mechanically propelled vehicles specified in such application were lorries which, in the opinion of the Minister, at the critical date complied with the qualifying conditions, ascertain the total unladen weight of such lorries and the total unladen weight so ascertained shall for the purposes of this Act be the standard lorry weight for the licensee under such licence;
(b) in case any of the mechanically propelled vehicles specified in such application were tractors which, in the opinion of the Minister, at the critical date complied with the qualifying conditions, ascertain the total unladen weight of such tractors and the total unladen weight so ascertained shall for the purposes of this Act be the standard tractor weight for the licensee under such licence.
I move amendment 37:
In page 7, line 2, to insert after the word "application" the words "made before the appointed day."
This is purely a drafting amendment.
Amendment agreed to.
Section 10, as amended, agreed to.
(1) Every merchandise licence granted in pursuance of an application shall—
(a) operate and be expressed to authorise the licensee under such licence to carry on a merchandise road transport business in respect of the merchandise specified in such application within the area or areas specified in such application, but subject to the provisions of this Act and regulations made thereunder and to the conditions specified in such licence;
(b) state the vehicle plate issuing station at which vehicle plates will be available for issue to such licensee, and such station shall be the station stated in such application as the station at which such licensee desired that vehicle plates should be available for issue to him;
(c) state whether such licensee is or is not an existing carrier.
(2) Subject to the provisions of this section, every merchandise (existing carrier's) licence shall operate and be expressed to authorise the licensee under such licence—
(a) if there is a standard lorry weight for such licensee but no standard tractor weight for such licensee to carry on the business authorised by such licence only with a lorry or lorries, the unladen weight or total unladen weight of which does not exceed such standard lorry weight;
(b) if there is a standard tractor weight for such licensee, but no standard lorry weight for such licensee, to carry on the business authorised by such licence only with a tractor or tractors the unladen weight or total unladen weight of which does not exceed such standard tractor weight;
(c) if there is a standard lorry weight for such licensee and also a standard tractor weight for such licensee, to carry on the business authorised by such licence only with a lorry or lorries the unladen weight or total unladen weight of which does not exceed such standard lorry weight and a tractor or tractors the unladen weight or total unladen weight of which does not exceed such standard tractor weight or with such lorry or lorries or such tractor or tractors.
(3) Where a merchandise (existing carrier's) licence is transferred under this Act to an authorised (merchandise carrying) company or a shipping company, the following provisions shall have effect, that is to say:—
(a) sub-section (2) of this section shall cease to have effect in relation to such licence, and
(b) the Minister shall, on the application of such company, amend such licence accordingly.
I move amendment 38:—
In sub-section (1) (a), line 24, after the word "application" to insert the words "or of merchandise of any class or classes not expressed in such licence to be excluded therefrom."
The section, as it stands, states that every merchandise licence granted in pursuance of an application shall "operate and be expressed to authorise the licensee under such licence to carry on a merchandise road transport business in respect of the merchandise specified in such application." It seems to me that the specification might be given in either of two ways— by inclusion or exclusion. A man might say "I will carry everything except such and such a thing, or I will carry named things."
The proposal as made requires the applicant to state definitely the class of merchandise he is willing to carry, as I thought it was preferable. It arises out of the common carrier clause. We want him to appreciate the responsibilities he is undertaking. We want him to undertake them knowingly, in relation to the class of merchandise he is to carry. If the alternative method were adopted the applicant might be taking on in fact a number of responsibilities he had no intention of shouldering.
I would like to ask the Minister in that connection are those common carriers who are going to be created under this section not going to be subject to the Railway Tribunal?
They have their own classifications?
They have their own classifications. In their application for a licence they are required to state the classes of goods they are willing to become common carriers for. They draw up their own classification. The only classification that interests them is the classification of the goods they profess themselves willing to carry.
That raises a very difficult point. Suppose a man says he is going to carry cereals, we would have all sorts of questions as to what is a cereal and what is not, except you say "for the purposes of the railway company", or alternatively he would have to be asked to specify each individual item he proposes to carry. Is it envisaged that a man in his application will say "I propose to carry cereals, feeding stuffs——
Deputy Moore interjects "hardware." That, in itself, will present very grave difficulties of interpretation. What is hardware? The purpose of this amendment is that an applicant could say "I will be a common carrier of everything except the following articles." I imagine the Minister is going to have amazing administrative difficulties if he is going to require that they shall accurately set out in their application the types of merchandise that they propose to carry. On the other hand, I think it is going to create a very undesirable situation if they can go carefully through all the most perishable and delicate merchandise and specifically exclude them, saying: "we will carry everything else." Take metal castings; they can carefully exclude those and so transfer them to the railway company. That is what will happen. They will exclude all the fragile and perishable traffic, and constitute themselves carriers only of that traffic which cannot be damaged. I just give that case in point. Take for example metal castings and hardware as distinct from other forms of steel and iron. Castings are notoriously dangerous to carry. Under Deputy McGilligan's amendment they could exclude castings, and still hold themselves out as free to carry every other form of hardware.
I do not see any point in that at all. The applicant will state the classes of goods that he wants to carry. If he has any difficulty in that connection he can get plenty of assistance from the officials in the Department of Industry and Commerce who will be dealing with him. At any rate, they will have to translate his application into a licence and put on it a clear classification of the goods that he has contracted to carry. But the responsibility is definitely on the applicant himself to declare the classes of goods that he wishes to become a common carrier for. I do not think any difficulty will arise in defining the classes of goods. In any event, if such a difficulty should arise it can very easily be met in the manner in which the licence is prepared.
Might I throw out this suggestion to the Minister, that there is a way ready to his hand in his own Department of overcoming that difficulty? In his Department he has got schedules in connection with patents and trade marks.
We have the railway classification.
The Railway Tribunal classifications are very peculiar. Certain things which would seem to be cognate have got into completely different classes. Perhaps Deputy Davin would tell us why that is so. At any rate, the classifications of the Railway Tribunal are very peculiar. There is the other classification to which I have referred. I submit to the Minister that he ought to consider providing some sort of classification of that kind, and of saying to a common carrier who applies to him for a licence: "You must hold yourself out as a common carrier of classes 1, 2, 3, 4 and 5 and take anything that is offered within their scope." Otherwise it is going to be administratively impossible to ensure that the applicant will, in fact, be a common carrier of all the classes of goods that he says he is going to be a common carrier for because, so far as I know, the only remedy the public have against him is an action for damages. They have no remedy against him under this Bill.
If he carries goods not specified in his licence?
Suppose he will not carry goods specified in his licence?
Then his licence is liable to be withdrawn.
What is the nature of the administrative check?
Apart from the fact that there is a right of action, there is, in addition, the right to withdraw his licence. As to the nature of the check that is on him, well, naturally the aggrieved party will make a complaint.
Is there any section under which I can go to the Department and say that I have asked A.B., a common carrier, to take a load of castings from Dublin to Maynooth, that he has refused to do so, and under which I can ask to have his licence withdrawn?
Well, if I report him to the Minister what procedure will the Minister pursue?
The Minister presumably will investigate the complaint.
And if the Minister is satisfied that on a given date A.B., a common carrier, refused to take the load of castings, under what section will he proceed to act?
There is the section which gives the Minister power to cancel the licence if the conditions attached to it have been broken.
If a common carrier carries classes of goods not specified in the classification which he submits, what is the nature of the administrative check that will enable the Department to discover that? How does the Minister propose to deal with that kind of case?
Is this provision not based on the assumption that there will be competition over every route: that it will be possible to restrict the private carrier to the classes of merchandise that he can carry because there will be a big company operating in the same district to take all the other traffic offered? Is not the Minister assuming too much when he thinks that there will be competition in every district? Take such an out of the way place as Garristown, or perhaps a better example would be Glencree or Glencullen. It may be years before the Great Southern Railway people decide to send a vehicle to these districts. Meantime, the carriers licensed will only be licensed for certain classes of goods. Take the case of a carrier licensed for the Glencree district. He is restricted to the carrying of the things named in his licence. There is a monastery at Glencree, and it may be necessary to get a wireless set taken there. If there is no wireless apparatus named in the carrier's licence, then he cannot convey the set. In such an out of the way place as that, there may be much more useful and necessary articles required than a wireless set, and simply because they are not named in the carrier's licence he cannot convey them though they may be urgently required. Difficulties of that kind are, I think, likely to arise in out of the way places because some considerable time may elapse before the Great Southern Company decide whether or not it would pay them to go to these districts. The result will be that the adoption of this principle of a restricted licence will act as a great barrier to the trade and development of out of the way places.
I would like to ask the Minister what he means when he says that in applying for a merchandise licence the carrier will have to specify the classes of goods which he intends to carry. Would the Minister say in what sense he uses the word "classes"? I do so because the ordinary carrier has no idea of railway classification. Is it the Minister's idea that he is going to, more or less, beat everybody into a standard process with a railway rates book in his hands? If it is, then I can tell him he is facing some job. I suggest to the Minister that there are several other very important points that he will have to consider. The ordinary carrier, I take it, applying for a licence is now going to be regulated as to classification and maximum charges.
Not the ordinary carrier.
What carrier, then, will be subject to the maximum rates?
In effect only the railway company.
Then the licensed carrier will not be subject to maximum rates or classification?
He will be subject to classification to this extent, that he can only carry the goods he undertakes to carry.
I would press again on the Minister that sub-section (2) of Section 8 is the sub-section in the light of which we are discussing Section 11. That sub-section says that the applicant shall state the class or classes of merchandise proposed to be carried by him. Had the Minister or his officials in their mind any established meaning for the word "classes"? Is there any statutory meaning for the word, or is there any procedure for attaching a meaning to it? I have had considerable experience of general business extending into many spheres, and I can assure the Minister that the difficulty of attaching a meaning to that word is going to be very great indeed. Take cereals, for instance. Suppose a man tenders a load of beans, which are very perishable. The carrier rejects it on the ground that it is not a cereal but a cattle food. Impossible situations of that kind will arise. A man undertakes to carry hardware. He is tendered a load of castings. He says no, that he will not take it: that it is not hardware within the meaning of his definition. The Department may come down on him and say: "It is. You have been constituted a common carrier to carry these castings." The Department may put a liability on the man that he never thought he was undertaking and did not mean to undertake.
Therefore, that is why I ask the Minister between this and the Report Stage to look into that question and to consider whether the classification in the Schedules of the Patent Office and the Trade Marks Office might not be a much more adaptable one for the purposes of this Bill than the railways classifications, which have become exceedingly complicated. In these offices, the Minister will find a large volume of precedents to guide him in any question that may arise in connection with this, because every person who applies for a trade mark or patent tries to get in as many classifications of commodities as he can. The Minister will have a great many precedents there to guide him in advising a person who makes application to be made a common carrier, as to the certain classes of commodities he may carry, and what liabilities he has as a carrier.
Might I suggest to the Minister, in drafting this classification for common carriers, that he should pay particular attention to inserting livestock into some particular category? In view of the statement which he made that the railway companies are not common carriers in the matter of the carriage of livestock, I think that there is a grave possibility that we will have nobody with a liability as common carriers for what is one of the biggest and most important items in our transport. I hope that the Minister will ensure that live stock will be a liability for some carriers whether the existing carriers or not. The Minister made that statement this evening, and I think it is a very serious matter.
There is another point about which I would like to speak. I am afraid that the hare which Deputy Dillon has started will require a lot of coursing. The point I wish to raise is how is the licence to be amended, what change can be made in it, and how offences can be prosecuted. These are very important points. It is quite clear that Deputy Dillon is right when he says that there is no clause under this Bill which gives any power to the Minister to do anything to a licensee, in relation to the common carrier provision, before a prosecution. He may operate on foot of a prosecution. That may be considered a breach as a result of the prosecution, and then, on the renewal, there may be a stoppage, but as far as the breach itself is concerned, that is left to a court, and there is no other way out of it.
The Minister does not say so. He says that if a breach is reported to him, he can withdraw the licence.
I should like to query that. The Minister has power to revoke a licence or to refuse the renewal of a licence. His power of revocation is equated to his power to refuse, and his power to refuse is only that of an existing carrier, or else on the same ground that is adverted to on this matter. I am speaking of revocation. Revocation is co-extensive with the refusal of a licence.
No. It is co-extensive with refusal of renewal.
Section 21, sub-section (2).
Sub-section (3) does not count because that relates to the procurement of a licence by fraud or misrepresentation.
Paragraph (b) of Section 18 authorises the Minister to refuse a renewal on the ground that there has been a breach of, or a failure to comply with, the provisions of the Act.
The words are "a breach of or a failure to comply with the provisions of this Act or of the regulations made thereunder." It says "a breach of or a failure to comply with the provisions of the Act"; and paragraph (c) talks about conviction of an offence.
Whether under this or any other Act.
Yes, whether under this or any other Act; but at any rate, as long as it is under this Act the conviction for an offence takes place, surely that includes anything that might come under Section 12, that is to say, breach of the common carrier obligation. It is hardly likely that the draftsman or the Minister intended that these clauses would overlap. I am taking it that paragraph (c) of Section 18 is the one that refers to the common carrier obligation, and the Minister's powers with regard to that are limited by whether or not there has been a prosecution and a conviction for an offence. If there is overlapping, then we will have to have that explained, because, if this Act is left as it is and it is subject to a different interpretation, that might be a matter to be looked into. Outside that, there is the question of whether or not the Minister may refuse an application because the applicant is not a common carrier or is not a railway company, or in accordance with sub-section (6) of Section 8 for failing to supply certain information.
That is the first point. But there is a bigger point to be considered. Supposing a person applies under this Section 11 and describes himself as a common carrier for certain named classes of goods, and then afterwards finds that some one of the classes embraces many more articles than he is either willing or capable of carrying, can he ever get that condition cut down?
Yes, Section 15 applies to the amendment of conditions.
Yes, but I am referring to the class of goods he carries and the conditions under which he will carry them. Section 14 says: "Whenever the Minister grants a merchandise licence he may attach to such licence certain conditions"; and then, in particular, the following conditions are specified: "the wages and conditions of employees engaged in the operation of the vehicles; the notification to and approval by the Minister of agreements or arrangements made in relation to the business by the licensee with other persons engaged in the transport of merchandise; and the use, either exclusively or to a specified extent, of vehicles manufactured in whole or in part in Saorstát Eireann." I think that there is a distinction clearly in the Bill between the conditions attached to a licence which a man gets to carry certain classes of articles and a variation of the classes. It seems to me that there is that gap in the Bill that once a person has landed himself, so to speak, with being a common carrier for certain named categories of articles, he cannot ever afterwards get out of those. That is a very serious matter, particularly at the beginning when, undoubtedly, applicants will not know very much about this whole business or about what classification really means; and they will probably be blundering about the classifications and interpreting them in a way which they do not really mean. I am acknowledging that a classification is only valuable from the angle of an offence from the point of view of the obligations of the common carrier. As a matter of fact, I do not think that the classification for the purpose of fixing of a maximum charge is going to be of any value for a year or two to come and I think it could be left out. We can deal with the railway companies and the existing carriers and the others on the same footing. I think that there should be some more precise phrase put in allowing for amendment by the variation in the different categories of the articles to be carried. I think the other thing is still, if not in some considerable doubt, in some doubt as to whether or not the Minister can take action for a breach of any carrier obligation, or whether he must leave it in the first instance to the court. If it is found that there is a breach of the law he can say: "I am going to refuse the licence."
I would like the Minister to make one point a little clearer. Deputy Keyes mentioned a matter that seems to have been overlooked. Supposing that there are certain commodities to be carried which are not included in any licence, how is the owner to have them carried?
Presumably by the railway company.
I take it that the railway company can put these commodities on the road as well as on rail. Will their licence be endorsed as carriers of certain commodities? In other words will they be limited to the carrying of certain goods?
Yes. There will be set out in the licence the classes of goods that they ask to have set out.
Yes. They may deliberately decide not to become common carriers for certain classes of merchandise on the roads at all, in which case they would not apply to have those classes included in the licence, and they would be unable to carry them by road.
Are they not common carriers under the Railways Acts?
That is the point I am leading to. Supposing these commodities are not included in the schedule attached to the railway company's licence for a particular area, the railway company cannot carry them. If no other carrier's licence includes these commodities, how are they to be carried? Who is to take them?
The railway company is being relieved of one of the principal obligations laid down by the old Railway Acts. Their claim always was that they were common carriers.
I mentioned that they were not common carriers for live stock.
Surely railway companies are obliged at present to accept on principle any merchandise consigned to them?
Certain classes are excepted.
Does the Minister know what the obligations of the railway companies are?
I do not see how that arises in this connection. The railways are common carriers for those classes of merchandise that they profess to carry. They are not common carriers of all classes of merchandise. Similarly in respect to road services, a licensee would be a common carrier in respect of the class of merchandise he is licensed to carry. Assuming we get the position that Deputy Good contemplates, that there are certain commodities to be carried to a particular district that nobody wants to carry, and that no one has applied for a licence to carry, we have provided for that contingency in Section 9 (3), which permits of the issue of a licence to someone willing to carry.
Supposing no one is willing to carry them?
If no one is willing to carry them they will not be carried.
I take as final what the Minister says, that he is speaking from the book and that there is a category of goods that the railway companies will not take, and that there is no means of getting carried. I confess I thought there were obligations on railway companies if a person was prepared to pay maximum rates—and the rates might be fixed very high according to the risk—and that they should handle the goods provided they did not imperil the railways.
If you take a type of article, say, explosives, the railway companies are not common carriers there and can refuse to accept them.
Are they excepted under the Railway Acts?
I do not know what the position is now.
I think there is a certain amount of confusion as to what the railways are bound to carry as common carriers. Would the Minister make this definition necessary, even in a general way? There are certain things which the railway companies are bound to carry because they put themselves in that position under the obligations attaching to common carriers. Are there other things which they are not bound to carry under these regulations? Are there things that they may refuse in any event?
There are commodities that they may refuse to carry under any circumstances.
Are not these set out specifically under some Acts of Parliament?
They are set out somewhere. I cannot now mention where the Deputy will find them. The fact that arises out of the amendment which we are getting away from is that existing carriers must deliberately make up their minds when applying for licences about the restrictions or the facilities they want imposed upon them in relation to the carrying of goods. Having made up their minds they are anchored there. The intention in each case is, so far as we can, to get them into the office and to make them understand the liability they are undertaking, and to get them restricted to the class of goods in respect of which they are willing to undertake common carrier liability.
Would the Minister have power to issue a general licence instead of specifying a particular class of merchandise?
That is to say all merchandise?
Surely no one would undertake that? I know that there is a definition for animals. I think an elephant is not an animal, while a worm is. I do not know in what category an elephant would be. The granting of a licence to carry general merchandise might include elephant carrying by lorry and, in fact, might have the effect of holding up the whole lorry traffic, by asking people to put it on board.
Undoubtedly the power is there.
To apply for the grant of a licence for all goods?
I am thinking of the position in such places as Glendalough and Laragh. It is by no means certain that the Great Southern Railways will cover them. There is a carrier in Laragh who does the main carrying business of the district. He is only able to do the work because he is free to choose the conditions under which he works. He can negotiate loads with people there and with people in Dublin with whom he trades. Now that he will be restricted in his licence he will have to be very careful that he does not exceed it in any way. I am wondering if it will be practical for him to serve completely that district at all. The Bill should have provisions for dealing with particular districts like the ones I have mentioned, where there is unlikely to be any competition from the big companies which it is intended to benefit under the Bill. There should be a provision to give such a man a general licence.
I am anxious to find out what will be the position of the railways with regard to the road transport of goods. Deputy Moore has mentioned one instance which will serve as an illustration. The Minister mentioned that the railway companies would make application for licences for certain districts. How many districts of the kind would there be? Will the railway companies in one district contract to carry an elephant while in another district they will not do so? What is the position with regard to the railways road transport undertaking under the Bill? Will they apply under the various sections, be licensed, and hand in what they are prepared to do in these various districts?
Presumably so. I anticipate that we shall get from the Great Southern Railway Company an application for a licence to carry specific classes of goods over all the areas served by the Great Southern Railways.
Over all their areas? What does the Minister mean by areas?
The province of Munster, the province of Connacht, the County of Clare, and so on.
There is a little misunderstanding in connection with the position. The position of the railway company as a railway company is quite distinct and different from the position of the railway company as a road user. That is the point I want to get quite clear. As I understand the situation, the railway company, as a railway company, is bound to carry all goods tendered to them with certain of what are called statutory exceptions.
That is how I understand the position. Now we come to the railway company as road carriers. As road carriers they have to get certificates from the Ministry. On those certificates will be endorsed the schedules of items which they are licensed to carry. They will be limited to those particular items which are endorsed on the schedules. Suppose there are some items which they are anxious to carry—of course the difficulty will be that there may be some items which they are not anxious to carry—which are not included in the schedules on the licence, what is the position? Would they have to apply for a new licence to carry these commodities?
The railway company will be in the position that it can apply for a new licence to extend its activities.
That adds additional force to the words we were considering a few moments ago—"at any time." That is the object of the words. If there are any commodities which they wish to carry, they can apply for a licence if they are not already licensed to carry them. That is the position with regard to road traffic but I am not at all clear that the Minister is right in regard to rail traffic. As I understood the position they are bound to take all goods offered them.
But not as common carriers.
That is not quite correct. If Deputy Good wanted the Great Southern Railway Company to carry bricks by passenger train they could refuse to do it.
The fact is that if you go to the railway company with any merchandise or any commodity of a dangerous nature they are entitled, say in the case of explosives, to prescribe very rigorous conditions as to packing but if you are prepared to conform with the regulations laid down by the railway company you can consign it by any form of transport and compel them to carry it.
I assure the Minister that it is so.
It is an interesting question but we cannot very well discuss it now.
The reason I raise the point here—I am speaking possibly against the interests of the railway company— is that you are relieving them of that old statutory obligation under this Bill.
No; certainly they are not being released from their obligations.
Yes, on the road. They are going to be handed over the whole transport of the country. When they were first getting the privilege of building the railways they were told "you are going to get great privileges in getting this concession and you must become common carriers, with these reservations that in regard to certain classes of merchandise you can make certain restrictions," but they had the obligation to carry everything that was tendered. In this Bill, the ultimate aim of which is to restore the monopoly which they had 50 years ago, you are not putting the same obligation on them. They were prepared to pay that price when they first got the concession. You are not asking them to pay the same price, when you are giving them a monopoly of the road as well as of rail. I say the railway company should be put under that obligation. If this legislation is going to hand over to them the right of monopoly, they should have been put under the old obligation to provide a means of transport for every class of merchandise one way or another. The present situation is that they can say "we will carry this class and that class by road." I may have something I want to send down the country. They can say: "Take it up to the Broadstone and we will deliver it to the station at Kells," whereas if the old obligation were extended to the road I could insist on their carrying it from my door to the door of the person to whom I want it delivered. If we are going to give them a monopoly, why not impose upon them the obligation to carry everything with all the reservations and safeguards which the Railways Acts gave them? If they were willing to do it when they got the Railways Act they should be compelled to do it now.
Whatever obligations the railway company had, in respect of the railway services, are not altered by the Bill.
They should have been extended to the roads.
This Bill makes no change in respect of railway services. In respect of road services this Bill is putting on them just the obligations the railway companies want to undertake. I think we may assume that the railway company will specify a fairly wide classification of merchandise that they would be willing to carry, and will exclude only merchandise which they think should not be carried by road, that is merchandise which nobody would be willing to carry.
I want to put on them the obligation to take all merchandise.
You cannot put on the railway company an obligation to carry by road anything that is offered. You cannot put on the railway company an obligation to carry by road any class of merchandise whatever, including elephants. You must have some restriction of responsibility.
Let us look upon the railway companies as rail carriers. Is there any doubt at all about their being able to select certain commodities? As I understand it, they are compelled to take everything that is offered to them.
Surely the only limitation on them is that they must take anything that is offered, provided the conditions they are entitled to impose are complied with. I think that is the only limitation.
I should like to ask the Minister would it be within the power of the railway company to refuse to take goods by road unless they were packed. I shall tell you why I am raising that point. It appears to me that there is going to be an extraordinary difference between the railway road transport services and the ordinary carrier. The ordinary carrier takes naked goods—I mean without packing—going from door to door. Are the railway company going to look at the road transport services through railway eyes and say: "These goods before being tendered to us must be packed in cases," as if they were going to be transported by rail? Possibly in some cases they will have to be transported by rail. At the same time I think the general public, and the Minister in safeguarding the general public, should be very clear and should know where they are. In other words, are they going to do away with the carrier and have a railway running on the road? I now move to report progress.
Progress reported. Committee to resume at 7.30 p.m.