Road Transport Bill, 1985 [Seanad]: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 2, between lines 25 and 26, to insert the following:

" `transport officer' means a transport officer appointed under section 15 of this Act.".

Other amendments which I shall move later refer to the appointment of transport officers with powers to carry out inspections for the purpose of enforcing the law relating to road freight transport and the carriage of passengers in buses. This amendment provides for the insertion of a definition of transport officer.

This is the definition section and as transport officers are being appointed this is the appropriate place for a definition. I wish to ask the Minister if this is the first time since the Bill was in the Seanad or in this House on Second Stage that the word "omnibus" has been mentioned? We are dealing mainly with hauliers and the haulage system. As far as I can see, this is the first time the word "omnibus" has been used in this context and I shall have more to say about it if that is so. I do not know why or when this word was introduced.

Deputy Wilson is correct. The major part of the Bill deals with freight matters but here we are dealing with enforcement. The problems of enforcement in relation to the road freight industry are similar to those of enforcement in the road passenger industry. The purpose of the set of amendments we are taking tonight is to provide a multi-purpose inspectorate to bring together all the Stage agencies involved in different aspects of law enforcement in relation to road transport and road traffic. Obviously it would be an omission if we were not to include road passenger services. I am sure Deputy Wilson would agree that it would be utterly wrong if, for instance, for lack of enforcement buses were travelling around the country in a dangerous state, not paying due taxes or having due markings.

I am in full agreement with the Minister that this is the place for a definition of a transport officer. As the word "omnibus" does not appear in section 1, I do not intend to say more about it at this point. I warn the Minister that I see quite significant implications in spreading the bailiewick of the transport officer outside the bounds of this Bill and I will be opposing it, for reasons I will state, when we come to the amendment which mentions omnibuses and the inspection of them.

I should point out that the Minister of State indicated in his speech on 13 March that we intended to make this provision for both the haulage industry and the bus transport industry.

Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.

I move amendment No. 2:

In page 3, line 20, after "1972.", to insert the following: "A system of bonding to ensure sound financial standing shall be established.".

As the House is aware, there are three requirements—good repute, sound financial standing and professional competence—which will be demanded of those who seek a licence under the new legislation. Those three conditions were welcomed on all sides of the House. In the context of the transport industry being so important, accounting for about 12 per cent of the economy, then it is necessary to have this type of qualification for someone who seeks a licence. The people involved in the industry have told us that one of the ways to help them is by introducing a bonding system. This House is aware of the benefits of such a system as it is built into a good deal of legislation. I refer to the Auctioneers Acts and to a Bill which I had the privilege of piloting through this House, the Tour Operators and Travel Agents Bill which laid down a bonding procedure as a necessity. Consequently I moved this amendment to establish a system of bonding. One could say that an individual haulier could make his arrangements for bonding and take that in as evidence to the Department of Communications that he was of sound financial standing, but I am asking that it be written into the Bill.

This amendment is one to which I will have to give very careful consideration. It was alluded to on Second Stage and in the Seanad. I see very clearly the thinking behind it and, of course, it is linked to the requirement of sound financial standing. To require applicants for licensing to comply with a bonding scheme could have the effect of unduly restricting access to the industry. The overall purpose of the Bill is the liberalisation of the transport industry. The Irish Road Hauliers' Association want bonding for new entrants in order to limit access but, if a bonding scheme were introduced, it would almost certainly have to be applied to the existing operators as well as to the new entrants; otherwise there might be very serious charges of discrimination.

The requirement in relation to financial standing under the EC directive and the provisions of that directive are implemented in this country by the European Community's Merchandise Road Transport Regulations of 1977. Provision for a bonding scheme could more appropriately be made under these regulations. Arising out of Deputy Wilson's amendment we have had these regulations examined to see if they are wide enough as drafted to include a bonding scheme, if it is thought to be a good thing. The answer we got was positive—that it would be a more appropriate place for this. The regulations are being reviewed at present for other reasons and I have in mind that more effective criteria for satisfying the financial requirements will be introduced. The Transport Consultative Committee have recommended it. Certainly I will be ready to look again at the question of a bonding scheme in the revision of the regulations. If it is thought to be a good thing; nobody will turn it down. I repeat the difficulty I see—that it might unduly restrict access to the industry. We are trying, of course, to liberalise the industry.

The Minister of State has said that the requirement to establish sound financial standing might restrict access to the industry. The people who would not be able to get a bond would probably be those who are not of sound financial standing. On what basis is a person determined to be of sound financial standing?

We are dealing with amendment No. 2 and that point would be more appropriate on the section.

It is leading to the bonding.

If the Deputy uses it as an argument for or against bonding, that is all right.

It is an argument for bonding. The person looking for a bond would have to go to a financial institution and that institution would not give a bond unless they were assured that the person seeking it was of sound financial standing. However, I would be concerned that the people who are not involved directly in business and in day-to-day financial transactions of that nature might not have the first hand experience to make a true judgment on sound financial standing. Therefore if a bonding system was acceptable and put into the Bill it would ensure that the people who would then be applying for licenses would be of sound financial standing.

The situation at the moment is that if a vehicle is taxed or insured in an operator's name, that is one way of fulfilling some of the financial criteria. Another is a letter from a bank that the person involved has sufficient financial resources to set up in this type of business. They are not very strenuous obligations. That is why we are having a look at the whole area of financial requirements in the regulations. It might prove difficult for new people coming in to get a bond. Having said that, I repeat that I am happy to have a look at the question of bonding. It may turn out to be a very excellent scheme and maybe the difficulties that we see in it do not exist. Naturally what we and the Deputies who have spoken are trying to do is ensure that the people involved in this have the requirements for stability and have the necessary financial strength or backing to be involved in this industry. I am interested in the bonding area and I will certainly have a look at it, and it can be done under the regulations.

In regard to bonding, would the Minister not agree that a new entrant could be in a sound financial position today when he is getting the licence but that might not be the position tomorrow and that the industry itself feels there is a need for an assessment of the person's means to see if he can stay in business and that for that reason bonding is necessary to protect the customer at the end of the day?

I would not go that far. I do not want to defeat the main purpose of this Bill with some new provision such as putting in bonding. Bonding can be very much looked at in the terms of the regulations and they are wide enough to accommodate it. But I would be very much afraid that if we introduce bonding we might create extreme difficulty for people in the business. I do not think we could possibly consider introducing it in the manner in which the Road Hauliers Association want it, that is, for access for new entrants. I think we would run into difficulties at that stage. I do not want to make it unduly restrictive because this is a liberalisation which is sought by everyone and is badly needed. I am willing to have a look at the question of bonding and if it proves a good scheme, so be it.

Strangely enough, I got the opposite impression from the Road Hauliers Association, that it was not an effort to restrict them but to make an easier road of access. This is the impression I got from the argument as it was put to me. In other words, a person who might not have in hard cash, enough money to satisfy the Department of his sound financial standing — although I am somewhat reassured by what the Minister said — might be able to get a bond on an annual subscription basis. I do know that a load of lamb that was being exported by a company disappeared in France and they never heard tale or tidings of it afterwards. When the Minister refers to the regulations, would he tease that out a bit and let me know are they European regulations? What regulations is the Minister referring to?

The current regulations about taxing or insuring a vehicle in the person's name are European regulations but we are entitled to make our own provisions within the regulations. We are allowed to set the financial criteria ourselves but these conform generally to what is in operation on the European scence.

Is the amendment being pressed?

Question put: "That the amendment be made."
The Committee divided: Tá, 56; Níl, 69.

  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Mattie.
  • Brennan, Paudge.
  • Browne, John.
  • Burke, Raphael P.
  • Byrne, Seán.
  • Calleary, Seán.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Coughlan, Cathal Seán.
  • Cowen, Brian.
  • Daly, Brendan.
  • Doherty, Seán.
  • Fahey, Francis.
  • Fahey, Jackie.
  • Faulkner, Pádraig.
  • Fitzgerald, Liam Joseph.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Gallagher, Pat Cope.
  • Geoghegan-Quinn, Máire.
  • Hilliard, Colm.
  • Hyland, Liam.
  • Kirk, Séamus.
  • Kitt, Michael.
  • Lenihan, Brian.
  • Leonard, Tom.
  • Leyden, Terry.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McEllistrim, Tom.
  • Moynihan, Donal.
  • Nolan, M.J.
  • Noonan, Michael J. (Limerick West)
  • O'Connell, John.
  • O'Dea, William.
  • O'Hanlon, Rory.
  • O'Keeffe, Edmond.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • Ormonde, Donal.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Treacy, Noel.
  • Walsh, Joe.
  • Walsh, Seán.
  • Wilson, John P.
  • Woods, Michael.

Níl

  • Barnes, Monica.
  • Barrett, Seán.
  • Barry, Myra.
  • Begley, Michael.
  • Bell, Michael.
  • Bermingham, Joe.
  • Birmingham, George Martin.
  • Boland, John.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Carey, Donal.
  • Conlon, John F.
  • Connaughton, Paul.
  • Coogan, Fintan.
  • Cooney, Patrick Mark.
  • Cosgrave, Liam T.
  • Cosgrave, Michael Joe.
  • Coveney, Hugh.
  • Creed, Donal.
  • Crotty, Kieran.
  • D'Arcy, Michael.
  • Deasy, Martin Austin.
  • Desmond, Barry.
  • Desmond, Eileen.
  • Donnellan, John.
  • Dowling, Dick.
  • Doyle, Avril.
  • Doyle, Joe.
  • Dukes, Alan.
  • Durkan, Bernard J.
  • Enright, Thomas W.
  • Farrelly, John V.
  • Skelly, Liam.
  • Spring, Dick.
  • Taylor, Mervyn.
  • Fennell, Nuala.
  • Flaherty, Mary.
  • Glenn, Alice.
  • Griffin, Brendan.
  • Harte, Patrick D.
  • Hegarty, Paddy.
  • Hussey, Gemma.
  • Kavanagh, Liam.
  • Kelly, John.
  • Kenny, Enda.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McLoughlin, Frank.
  • Manning, Maurice.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Molony, David.
  • Moynihan, Michael.
  • Nealon, Ted.
  • Noonan, Michael. (Limerick East)
  • O'Brien, Fergus.
  • O'Brien, Willie.
  • O'Keeffe, Jim.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Prendergast, Frank.
  • Quinn, Ruairí.
  • Ryan, John.
  • Shatter, Alan.
  • Sheehan, Patrick Joseph.
  • Taylor-Quinn, Madeline.
  • Timmins, Godfrey.
  • Yates, Ivan.
Tellers: Tá, Deputies V. Brady and Browne; Níl, Deputies F. O'Brien and Taylor.
Amendment declared lost.
Question proposed: "That section 2 stand part of the Bill."

I would like a little clarification. Section 2 (1) (b) provides that:

every application shall state—

(i) whether it is for a national road freight carrier's licence under the Road Transport Act, 1985, or for an international road freight carrier's licence under that Act.

If I understand correctly from discussion on Second Stage, the holder of an international road freight carrier's licence can conduct business within the State as well on a footing equal to the haulier who has a national road freight carrier's licence. It would seem then that a more sensible thing to do, considering that we are a member of the EC, would be to ignore the national road freight carrier's licence and apply for the international one. There may be something wrong with my thinking there, but if an individual or business was not engaged in international transport but wanted to keep the option open, the most logical thing to do would be to apply for an international road freight carrier's licence. He or she could then continue to operate within the country until the international development had taken place and the firm was in a position to develop an international sector. There may be an international heavier obligation to be fulfilled in the case of getting the international road freight carrier's licence and this may be where the flaw is in the argument, but I would like the Minister to clarify that.

The application is to "contain such information as will satisfy the Minister that the applicant complies with the requirements as to good repute..." That is difficult. I do not know what would satisfy the Department of communications as to the good repute of an individual. Where do you go looking for good repute?

The purest treasure mortal times afford

Is spotless reputation; that away Men are but gilded loam and painted clay.

Who is in a position to tell the Department that an individual is of good repute? What kind of goodness? Moral goodness? Financial goodness? They are not always or even frequently the same. "Sound financial standing" is easy to get at. The Minister of State mentioned letters from bankers and/or other financial institutions. I am sure that can be assessed easily enough. Owners of property of a certain value, land and professional competence are covered and I do not need to tease them out. The professional competence will be assessed according to international standards or European standards and certified later. I would like the Minister to comment on these points.

The Deputy is quite right as regards the validity and usefulness of an international and national carrier's licence being the same in the country here, but this is all about the old question of examinations. Amongst the criteria for professional competence the examination for the international licence is the wider and has an international section, so I suppose some people might feel it would be easier to qualify under that section alone if they were not involved in the international situation and would prefer it that way. That is the reason for the distinction but, as the Deputy points out, rightly, the usefulness, validity and thoroughness of the licence in each case for operation within the State are the same. That is the reason for the two types. In other words, there is an option if one prefers the national licence and thinks the examination in that respect is sufficient to be going on with, so to speak.

I agree with the Deputy that it would be wise as far as possible not to leave to subjective judgement the question of good repute. The criteria of good repute are laid down in Community regulations, not by the community as such because it is up to the member state to provide the various criteria, but they must in turn be sanctioned by the Commission. To give an example of what it is, it is not an individual thing; it is cumulative, so to speak. In the case of illegal haulage, for instance, only a fine in excess of £50 is taken into consideration. I am not saying that any individual thing eliminates a person.

Is that a European limit?

No, it is ours, but the commission have to be satisfied with our regulations and have to sanction them, but so far individual States are entitled to make their own set of requirements for good repute. There are other matters, such as drunken driving, driving without tax or insurance, etc. but that is not any individual one of those. The cumulative record will be taken in when the Minister makes his decision on this aspect.

I would be a little perturbed if I thought the national certificate by being that much easier to obtain were to be regarded as something of less value or validity than the one allowing a person to operate internationally. It would not be desirable for that state of affairs to be allowed to continue. What about people who already have international licences under ECMT or EC regulations? Will there be any question of examinations for them?

Therefore, strictly speaking, the criterion about examinations is one for further recruits to the haulage business. Is that right?

Yes. However, I should not like to denigrate the national carrier's licence and to say that it denotes a lesser competence than the international licence, but there is a section in the international examination which is particularly appropriate to people who would be carrying out road haulage on an international basis, regarding laws, geographical knowledge and traffic laws on the Continent. However, that would not mean that the person who had a national licence only would be less worthy to conduct haulage in the State.

Deputy Ahern has just suggested that the man who got a pass would get a national licence and that the man who got honours would get an international licence which suggests a transposition of a quotation from the Minister's constituency — Pass Man, Horse by.

I should like to ask about people who have been operating in the road haulage business for many years, who are honest and financially sound and have paid their taxes and so on over the years but who have not got licences. Would good repute count in the case of those individuals if they applied for a licence?

They would have to prove good repute when the Bill is passed. However, I am aware that there are many individuals who, although they do not have licences, have kept all the other laws.

The Minister has not dealt adequately with my question. How would good repute be applied to those individuals? Would the fact that they did not have a licence be held against them?

The fact that there is a £50 fine for illegal haulage must be a factor but if illegal hauliers have not been convicted of drunken driving, driving without insurance or tax that would be a factor in their favour.

Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

This section contains the substance of the Bill. Subsection (1) (c) needs further clarification. It says that the Minister shall grant, in accordance with this Act, "to the holder, on the commencement of this section, of a current road freight certificate issued under regulations made under the European Communities Act, 1972, who is not the holder of an existing merchandise licence (or licences) or of a restricted road freight licence (or licences) under the Principal Act who is engaged in the business of road haulage operator in an area which is an exempted area within the meaning of section 8 (1) of the Principal Act (as amended before the commencement of this section), in substitution for such current road freight certificate, a national road freight carrier's licence or an international road freight carrier's licence." What is the significance of the European Communities Act, 1972? Could the Minister also say if there is any relevance in certificates issued by the European Commission of Ministers for Transport, an organisation which covers a wider area and includes more countries than those in the EC.

The people in the exempted areas, even though they do not need a licence, require a road freight certificate in relation to the three elements about which we have been speaking. That is how the 1972 regulations of the EC come into it because they laid down the three particular areas requirements to which I referred. I did not get the Deputy's last point about countries outside the EC.

I will go over that section again. It says that the Minister shall grant "to the holder, on the commencement of the section, of a current road freight certificate issued under regulations made under the European Communities Act, 1972 ...", Such a person only has a road freight certificate under the European Communities Act Regulations. He does not have an existing merchandise licence or a restricted road freight licence but he is engaged as an operator in an exempt area which meant that he did not have to have a licence in that area. Is the current road freight certificate simply taken from him? Does he then get a national or international road freight carrier's licence in lieu of it?

Yes that is the situation. Apparently, if one is in an exempted area like Dublin or Cork in which there is a ferry service, has an international licence and does not need to operate any further within the State that person can operate internationally.

The other part of my question related to licences held from the European Council of Ministers of Transport, the ECMT licences. Are they covered by subsection (1) (c)? They were very precious and were very much in demand by hauliers.

This section refers to Irish operators only.

I am referring to Irish operators who under a special arrangement held licences, permits or permissions to operate from the European Council of Ministers of Transport. I presume that body still exists. Are those hauliers covered in this and, if not, are they covered in any section of the Bill?

Apparently, those people would also hold a licence from the Department.

Would that individual of necessity hold a licence from the Department? We are talking about some licences held under the EC Act without having to have anything from our licensing authority. Is that correct? The subsection states:

... of a current road freight certificate issued under regulations made under the European Communities Act, 1972, who is not the holder of an existing merchandise licence (or licences) or of a restricted road freight licence (or licences) under the Principal Act who is engaged in the business ... which is an exempted area ...

The business of such an operator may have been in an exempted area and he may have had a licence under the EC Act to operate outside the country but will that person get a national or international licence? I am wondering if there is an ECMT gap there? Will the Minister have a look at that matter before Report Stage?

Such a person has to have an international road freight certificate to get an ECMT licence. The position of that person will not be affected by the section before us.

Such a person would have to have an existing international licence?

I should like to have a number of points clarified. The holders of licences under the 1971 Act related to the number of vehicles owned. Will one licence cover any number of vehicles and, conversely, in the case of a partnership, will more than one licence be issued for the one vehicle? How will that relate to the existing position? The two year clause mentioned in subsection (6) has been a very argumentative point between different aspects of the industry. Will the Minister tell the House why he selected a period of two years? What circumstances will obtain in two years' time that will not apply in one year's time?

One licence will be issued per applicant and a partnership will be treated as one applicant. There is no limit on the number of vehicles per licence. The reason two years was chosen is because some people may be slow to renew their licences and may overlook this. Those who had a licence will be allowed in within a period of two years prior to the coming into force of this section.

Will the provision in regard to partnership not leave a loophole? If an individual of bad repute realised he did not have a chance of getting a licence he could set up a partnership with a person who may be new to the business. Is that not a loophole?

That is covered because the partnership will have to be designated and the record of the partners will be taken into consideration.

A bad apple would not be allowed to rot the remainder in the barrel?

Will those who have been forced to operate without a licence but have proved to be reputable be granted an interim licence for a period of two years so as to give them an opportunity to apply for a licence under the new law rather than keeping them in the wilderness?

With regard to the question of enforcement is there any provision in the Bill concerning the displaying of the licensing arrangements on a vehicle as we have in regard to tax and insurance?

If we gave interim licences to illegal hauliers they would be placed on the same footing as the legal hauliers and I do not think that would be fair in the circumstances. The two year transition period is reasonable taking everything into consideration. It was difficult to pick the time span because arguments could be made for a shorter and a longer period. The question of display of the licensing arrangements was raised in the Seanad but there is not such a provision in the Bill. As I said on that occasion, I will give consideration to the matter. The point was made very strongly in the Seanad.

If there is no provision in the Bill for display of the licensing arrangements what section gives the Minister power to introduce those arrangements subsequently? Is it not more logical to bring forward an amendment on Report Stage to insist on a simple disc being displayed to indicate that the owner is conforming with the legislation?

A point was made in the Seanad about the difficulty of getting an absolutely identifiable disc that would be easily recognised at a distance. Under the 1933 Act vehicles must be plated and that regulation continues in force.

The Minister will be aware that the existing plates changed hands at very substantial prices up to comparatively recently. Deputy Yates's intervention prompted this question from me: three people each pay £3,000 and each has a legal right to a third of a plate. On the transfer now to the new system where will they stand, the people who have that kind of investment? Will only one of them get the new licence or can they, as a troika, get the licence?

It is dependent on whose name the licence is in, but generally speaking in order to qualify, it had to be a partnership or a company. The final test will be in whose name the existing licence obtains.

Is the Minister saying then, that at present where there is such an operation that one name only attaches to the licence or are there any instances of two or three names attaching to a licence, as such?

I understand that there are partnerships listed but, in the final analysis, that will be the test; I do not think any other test could be applied.

Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."

Subsection (2) raises the question of an international road freight carrier's licence qualifying the holder to carry on a merchandise road transport business either inside or outside the State with such vehicles as may be specified in the licence. I note that the vehicles must be specified in the licence. How does that square with what was said to Deputy Yates, namely, that there would be no limit on the number of vehicles? Is there a limit or what does "specified" mean when it is stated, "with such vehicles as may be specified in the licence"? What exactly do those words mean?

I might as well make my other points while I am on my feet. I am a little puzzled about subsection (3) which reads:

Every merchandise licence shall also operate subject to the relevant provisions of this Act..

By "this Act" we mean the Road Transport Bill, 1985 when it becomes an Act. What does "(as amended by the Road Transport Act, 1985)" mean? Is that this Act, or does that refer back to the Principal Act? The wording is obscure and, if recast, could be clarified somewhat. When it talks about "this Act", naturally it should be remembered that this is a substituted section. Consequently "this Act", in a substituted section, should not refer to the Principal Act but to this Act, the Road Transport Act — as I hope it will be — 1985. It strikes me as being a kind of incestuous amendment, an Act amending itself. I may be right in speculating that it is the Principal Act, as defined. I think the Principal Act has been defined as the 1933 Act in the definitions section.

Perhaps the Minister would comment on those points, what is meant by the phrase: "with such vehicles as may be specified in the licence" both in the national and international context? Also, what does that obscure, mixed-up, incestuous kind of sentence mean?

As I explained when replying to Deputy Yates, there is no limit on the actual numbers but, in making the applications, the particular operator, company or whoever it is must give the registration numbers. If he wishes to add to it subsequently he has to give the extra registration numbers.

Or if he changes during the year he has to as well?

That is correct. But there is no limit. He can have as many as he wishes, or as great a number as he wishes, but he just has to give the registration numbers. I understand that those numbers are written into the licence given to the particular haulier.

I agree absolutely with what Deputy Wilson has said about that and about subsection (3). This is one of the difficulties that arises from the lack of consolidation at this stage. Indeed, there is a proliferation in the whole Bill of this kind of thing and it is extremely difficult to follow. I want to make that point. This is simply a new section that will go into the old 1933 Act. Therefore, when it refers to "this Act", it is referring to the 1933 Act. I am sure the Deputy will have noticed, in preparation for the Committee Stage discussion, the number of times it occurs and, indeed, the virtual impossibility to follow it at first glance without having carried out a thorough study of it. I hope it will be consolidated at some stage in the not too distant future. As the Deputy will have seen, in the earlier stages, this deals with the Road Transport Acts of 1932, 1933, 1934, 1935, 1956, 1971, 1978 and the Transport Acts of 1944 and 1958. There are references to all of those Acts in the Bill.

I share in the general confusion about the different types of licences. Subsection (4) says that a merchandise licence shall not be transferable. Perhaps the Minister would clarify for me, in relation to "own account" transport, what would be the situation in the event of a business having gone into liquidation. What would be the rights of a liquidator in those circumstances over a company sold as a going concern? Would that have no effect on "own account" transport or would the transferability of that merchandise licence not apply in that instance?

The position is that an "own account" carrier does not need a licence. There is provision in another case — not exactly similar but we shall be dealing with it later — where a person may die, where a haulier may die, for accommodation for his wife and family. That is dealt with in details in a later section. That is a different matter from what is being raised now. There is no such thing as a transferable licence. As everybody knows, there was the possibility under the existing legislation that the Minister had power, in certain circumstances, to transfer a merchandise licence because the quantitative restriction licence that may have been required for monetary values about which we have been talking was never really intended

Arising out of that, in the circumstances of the business mentioned by Deputy Yates — and I intended to make a point about that transference — I presume that prescinding from the licence thing the provisions of the Act will not interfere with the value and goodwill of a built up business. If one prescinds altogether from the licence the goodwill of the business could be sold, not the licence itself. The new person who bought a goodwill could then apply and if he fulfilled the conditions, he could get a licence for that business. Is that correct?

It is a separate question. Indeed, I could possibly take in the question of liquidation for a licence holder, when the new owner of the business would be eligible to apply for a new licence if he qualified. With regard to Deputy Wilson's point about the vehicles and all of that type of thing, naturally all of that would have a value. The existence of the licence would not enhance the value of the asset because the next person would have to apply for a licence, and he would have to prove eligibility. Of course goodwill comes into it.

I should like to know something about the effects of the Bill on own accounts transport. One with an own account system might go for hire to a large company, such as Cadburys or Guinness. If such a person decided his overheads were very high and he decided to supplement his turnover by doing some transport for Rowntree-Mackintosh, for example, surely that would be totally anomalous. A professional haulier will have to comply with the full rigours of this legislation but another person who decided to do a bit on the side would be totally exempt.

The Deputy has made an interesting point. If an own account firm wished to get into trading for another he would have to apply for a licence like anyone else and if he were otherwise qualified he would get a licence. There are many theories about what will happen under this legislation. There is an opinion that there will be a great movement of own account people into the licensed haulage area. That has been the experience in other countries. We cannot forecast what will happen but my guess is that a large proportion of goods carried will move to professional licensed hauliers.

Have we written into the Bill in section 4 (5) (b) the time a licence will last?

Yes. It will last for three years.

Thereafter, will the applicant have any new examinations to do and will he have to pay the fee again when he applies for the new licence?

He will have to prove that he is of good repute, but the examination will already have been done.

Question put and agreed to.
SECTION 5.

Deputy Wilson has amendment No. 3 to this section and the Minister has No. 4 to section 6. Both are related and the two may be taken together.

I move amendment No. 3:

In page 5, after line 51, to insert the following:

"(e) provided always that such revocation or suspension may be appealed to the High Court."

The amendment was not tabled because I had no confidence in any Minister but on the basis that a citizen should have a right of appeal. Some legislation that came before the House from the Department of Communications recently, for instance, the Canals Bill, was amended, the Minister accepting an amendment of mine. This amendment proposed to give the citizen another bite at the cherry if he or she is not satisfied with the decision of the Minister. Other suggestions have been put forward by professionals in the field about a special tribunal — some of my colleagues may speak about that suggestion — but I want a provision that the person who applies should feel that there is an avenue open for him or her to appeal to an independent tribunal. All too often people who fail for perfectly valid reasons when dealing with Departments resurrect all types of accusations against the Minister. They say political influence was brought to bear or that some official in the Department would not give the person a licence if he or she were applying until Tibb's Eve. Everyone in public life is familiar with that kind of thing.

I want the appeal to be to the High Court. It is necessary to have such a safeguard. The amendment proposes to put in a new paragraph in substitution for subsection (3) of section 24 of the Principal Act. The wording of this section is provocative because it suggests that the Minister may at any time on his own motion and at his discretion revoke or suspend for such period as he shall think proper a merchandise license:

(a) on the ground that, in his opinion, there has been a breach of or a failure to observe or comply with a condition attached to the licence,

(b) on the ground that the holder has been convicted of an offence (whether under this or any other Act) in relation to the business to which the licence relates or a vehicle used in such business,

(c) if the holder ceases to comply with any relevant requirement specified or referred to in regulations under the European Communities Act, 1972, or

(d) on the ground that, in his opinion, there has been a failure to comply with a relevant provision of this Act or of regulations made thereunder.

The Minister is acting as a kind of judge and jury for the EC and I do not think it is healthy that this subsection should stand without giving applicants recourse to some preferably outside authority. The Bill refers to "regulations made thereunder". That covers a very wide field.

In respect of the principle and the thinking behind Deputy Wilson's amendment that there should be a right of appeal against the Minister's power to revoke or suspend a licence, there should also be provision for an appeal against refusal to grant a licence. There is an appeal provision in the EC regulations which would apply where a Minister refuses a licence on the ground that the applicant for the licence, or the licence as the case may be, does not comply with the requirement of those regulations. On reconsideration, it might be better to have the appeal provision in the Bill and I am putting forward an amendment to include a section covering appeals against both refusal to grant and revocation or suspension of a licence.

Progress reported; Committee to sit again.
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