The Minister of State at the Department of Communications reported progress on amendment No. 3. Amendment No. 3 and substitute amendment No. 4 are being taken together for the purpose of the debate.
Road Transport Bill, 1985 [Seanad]: Committee Stage (Resumed).
SECTION 5.
Debate resumed on 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.".
—(Deputy Wilson.)
I had made the point that I accept the principle of the amendment proposed by Deputy Wilson that there should be a right of appeal against a decision of the Minister to revoke or suspend a licence. I think, however, there should also be provision for an appeal against a refusal to grant a licence. There is an appeal provision in the EC regulations on admission to the industry which would apply where the Minister refuses or revokes a licence on the ground that the applicant or the licensee, as the case may be, does not comply with the requirements of those regulations.
On reconsideration I feel it would be better to have the appeal provision in the Bill. I am moving an amendment to include a section covering appeals against both refusal to grant and revocation or suspension of a licence. I hope my alternative proposal will be acceptable to the Deputy. It is, of course, wider than his amendment and covers the refusal issue as well. I think it would very adequately cover the provision sought in Deputy Wilson's amendment. My amendment, which I understand will be dealt with later, is not, as far as the courts are concerned, the same as Deputy Wilson's. It embodies very much the same idea and the same spirit and is more comprehensive.
I appreciate very much what the Minister has said with regard to my amendment to section 5 and his proposed amendment to section 6. Nobody likes to admit that his or her amendment is less effective than the one proposed. I wish to ask the Minister why he thinks his amendment is better than the one which I put down which is more succinct than the Minister's. My amendment states, "provided always that such revocation or suspension may be appealed to the High Court." I know that in the EC regulations the District Court is mentioned. In the normal course of events the District Court is the cheaper court. I do not mean that in any derogatory sense. It is a court where the citizen will not be exposed to as high a cost as he would in the High Court. My idea of putting down the High Court in the first place was to cut one stage off in case the person is refused so that he will not have the cost of the District Court and the case will go straight to the High Court on the matter. In what he has just said and in what he said immediately before progress was reported, the Minister referred to European Community regulations. If I could have the reference to that from the Minister I would be grateful.
Although I think my amendment is more desirable, that is in no way, as Deputy Wilson implied, reflecting on his amendment which is succinct and to the point. This is a more general provision which covers the refusal. We thought it should be embodied in the Act. As regards the District Court, one of the main considerations is the fact that it is financially cheaper as far as the applicant is concerned. It would certainly be quicker for getting a decision and would be very much in the person's area on a constant basis.
There will be provision for appeal but only on a point of law in which case it could go ahead to a higher court. Even though the High Court would be a totally suitable area in which these things could be decided, and even though I see the point raised by Deputy Wilson of removing one step along the line, we hope the District Court will be the one step. The European Community regulations mentioned — the statutory instrument — are European Communities Merchandise Road Transport Regulations, 1977, code No. SI 386/1977.
Where an existing licence holder wishes to transfer the licence to his son, and where the licence has been in the family for a long number of years——
That might be more appropriate at some other time. We are dealing with amendment No. 3.
I want some information from the Minister on the question of appeal. In a case where an applicant is waiting over a year for a decision from the Department as to whether a transfer would be made or not, is there some mechanism in operation whereby the failure of the Department to make a decision can be challenged? Does the applicant for the transfer of a licence have to wait for over a year for the Department to make a decision? What appeal mechanism exists in that case?
In the new system there will be no transfers. There will be special regulations made. We will deal later with what happens if a person who is the designated person or the owner dies and the question of transfers or arrangements for an interim transfer pending a regularisation. There will be no transfers under the new system.
As far as the Chair can see, this amendment deals with an appeal to the High Court against the suspension by the Minister of a merchandise licence.
This is relevant.
I do not think so.
I wish to ask the Minister if the Department are not dealing with existing applications for transfer pending this legislation.
All existing applications are being dealt with in the normal way.
I am aware of one case where a person has waited for over a year and a decision cannot be got from the Department.
If the Deputy will give me that information I will look into it.
Apart from the point about an extra layer of costs, the Minister has made a fair attempt to meet the problem which arose from very naked powers being taken by the Minister in the original version of the Bill. I appreciate that. I also take the point that the provision in relation to refusal and suspension should be comprehensive.
The Statutory Instrument mentioned by the Minister is a bit confusing. It is referred to under the 1972 Act, the original and empowering Act. I have a copy of Statutory Instrument No. 386 of 1977 and I have read the very substantive section on appeals. Arising out of that, and what the Minister has said, I should like to get an assurance from the Minister about a matter raised by the Confederation of Irish Industry in the submission sent to the Minister and myself on the provisions in the Bill. In the course of their submission they stated that the Bill allows the Minister to revoke a licence for reasons other than the three specified in the European regulations — competence, sound financial standing and good repute. The CII hold the view that some of the reasons are duplicated in the European Communities Act, 1972.
I do not want to be cutting in unduly on the Deputy but as I see the Deputy's amendment it provides for appeal to the High Court and if we could get rid of that we could move on to a wider topic.
It is being taken with the Minister's amendment and what I am dealing with is relevant to the Minister's amendment. I understand that it was agreed on the last occasion to take the two amendments together.
That is correct.
The CII submitted that the provisions also leave it open to individuals to recommend to the Minister that the licences of another company should be revoked for reasons not directly connected with the provisions of the European Communities Act, 1972. The CII indicated that they believed that this would be counter-productive and would leave too many discretionary powers with the Minister. Will the Minister comment on that?
The CII contend that if licences are to be granted to all who satisfy EC requirements, then the EC regulations should be the criteria in this respect. The CII hold the view that licences should only be revoked where the licensee ceases to satisfy the EC regulations. I can see the logic in their argument. Our grounds for the revocation of a licence have been in operation continuously since 1933 but we have the addition that a licensee must meet EC admission requirements.
Under the new licensing regime there will be no quantitative restriction. We are liberalising the process and everybody thinks it is a good idea to do that. Where there is no quantitative restriction or where the qualitative requirements are the only criteria to be met, we think it is necessary to retain the conditions that have existed since 1933. It is also necessary that the Minister should have the power to revoke a licence when he is of the opinion that the holder of a licence does not abide by the law, including any condition attached to the licence. We are not generating any new conditions of our own and we are embodying with the 1933 conditions the EC regulations. I accept the point made by the CII, that as the operation will be under the EC it should be governed by EC regulations.
I am intrigued by all this. If the Minister is satisfied with the professional competence of an applicant, that he is sound financially and is of good repute, what other qualities is he demanding that are covered by the 1933 Act? It appears to me that he is looking for the paragon of animals if he is requiring qualities and qualifications and so on which are not covered by the three EC provisions. Will the Minister indicate the areas that are not covered by the three EC provisions and tell the House how they are desirable?
The extra provisions relate to conditions that may be applied by the Minister in the granting of a licence. There is a variety of them. For instance, the display of a plate could be included in the granting of a licence. Most of the conditions attached to a licence are of a general nature and will not cause any problem. It is stipulated that a licensee may not loan, rent or hire or temporarily transfer the licence or any vehicle plate issued under it to another person. Licensees are not required by law to own the vehicles operated under the licence and may plate other vehicles on their licence within the authorised capacity provided they are responsible for the carriage. This enables hauliers to expand their business without having to invest capital in additional vehicles. This has been abused without any doubt by some hauliers renting out plates to unlicensed persons for considerable monetary reward. This increases the incidence of illegal haulage as well as the number of illegal operators. The increase in the vehicle capacity authorised under the Road Transport Act, 1978, increased the opportunities for abuse and the removal of any limit on the number of vehicles a licensee may operate which is provided for in the Bill will provide more scope for the unscrupulous licensee.
Generally speaking, the conditions attached to licences will not cause any severe problem. It is thought right that, because the quantitative restriction is being removed and the qualitative provision being the only requirement necessary under the liberalised system, we should preserve the conditions that have been in operation since 1933.
The display of the plate could be included under "professional competence" and the transfer, contrary to the purpose and the letter of the law, could be covered under the heading, "good repute". The point I am making is: why extra verbiage if the three provisions which the EC have stipulated seem to be comprehensive enough to cover the whole field?
The Minister of State will agree that the problem in the haulage area down through the years has been that the conditions and regulations were not implemented and enforced. This created real problems in the haulage area generally.
I do not think this will create any grave difficulties as such. It would be unwise at this stage to remove regulations which have survived through a multiplicity of Acts and which have caused no difficulties in the past. We are incorporating the EC regulations which are very reasonable. I do not think anyone could object strongly to them. This is a wise provision. It is not new and it is not as if it is untested. It is something which has been with us since 1933. Therefore, it is on our Statute Book for 53 years. There is no need for the removal of it on this occasion. I have been advocating very strongly the consolidation of all these Acts. I am sure Deputy Wilson, who has wide experience in dealing with them as a Minister and as spokesman for the Opposition, will agree with me. That might be an occasion when this could be looked at.
The provision in the Minister's amendment and in the Bill is unnecessary. The three conditions which are laid down are sufficient to allow the Minister to revoke licences if the licensees break the law in any manner, such as in the professional competence field which has been specified here.
I have been trying to find out if what we are dealing with is relevant. I do not think it is. The regulations are referred to but these are regulations governing the procedure for appeal.
That is within the amendment.
We are outside both amendments at present.
I leave it there.
A Cheann Comhairle, did I move my amendment?
No. What has happened is that Deputy Wilson has moved his amendment and we are discussing the Minister's amendment with it but both of these amendments simply and solely deal with appeals from the Minister to the District Court and/or the High Court. We will come to the wider matter when we deal with the section. The only reference to the regulations is in the Minister's amendment, subsection (5), but they are obviously court regulations.
The Minister did refer, before we reported progress, to the regulations. As his own amendment seems to derive in spirit and substance from what was already in Statutory Instrument No. 386 of 1977 I felt I was dealing with it properly under the joint consideration of my amendment and that put down in the name of the Minister of State.
It is widening the scope of the debate too much on those amendments.
It is appropriate on section 5.
When we deal with section 5, as amended, or not amended, it will be appropriate.
Are we dealing with section 5 as a section?
No. If we could get rid of the amendments, we would come to it. Is amendment No. 3 being pressed?
In view of what the Minister has said and the way he has teased it out, I will not press the amendment to a division although I had intended to do so. The Minister met the situation in a way that I see to be reasonable. There is one point I want to clarify. If I withdraw my amendment, I take it that section 5 stands as it is?
If the Deputy were to withdraw his amendment, the next question would be: "That section 5 stand part of the Bill."
What I am afraid of is that I will come to a stable door and lock it when the horse has gone.
You can discuss section 5 and if there is a Report Stage you could, in theory, put down an amendment in regard to anything he raised on Committee Stage.
Put the horse back in the stable again.
Amendment No. 3, by leave, withdrawn.
Question proposed: "That section 5 stand part of the Bill."
Section 5 as it stands reads as follows:
The following subsection is hereby substituted for subsection (2) of section 24 of the Principal Act:
(2) 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 licence—
(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
I think that Statutory Instrument No. 386 of 1977, the one to which I have been referring entitled the European Communities Merchandise Road Transport Regulations 1977 derives its validity from that Act—
(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's amendment to section 6 does not make any reference back to section 5, in which the Minister is given very wide powers which are almost absolute. Consequently, I am worried about the effect of his amendment to section 6. Can we take it that in the absence of a reference back, section 6 will qualify the powers given in section 5? This is important in the light of my agreement to withdraw my amendment to section 3. If the Minister's amendment to section 6 is aimed at modifying the powers in section 5 and will provide for a District Court appeal it would leave me easier in my mind.
The only new provision is paragraph (c) which deals with the EC Act. A licence would not be suspended or revoked before the appeal to the District Court, and notification from the Minister to suspend or revoke a licence would not be given until the appeal to the District Court had been made.
Does it modify the powers in section 5?
Yes. The Minister would have to notify the licensee that there was a proposal to suspend or revoke, as the case might be. The licensee could put into operation the machinery for appeal provided for in section 6.
Did the Minister at any time consider the appointment of a licensing tribunal which would also take care of appeals procedures? People who have been in the business have been expressing opinions about this. I should like to know the Minister's view on the matter?
There were discussions with the Minister on this and the possibility of establishing an appeals tribunal was considered very carefully. After considerable discussion it was decided not to proceed with the proposal for a tribunal and to leave appeals to the District Court. There is nothing strongly against an appeals tribunal.
There were strong views on this section and it was thought that a licensing tribunal should deal with appeals.
It was thought that there is no case in the context of qualitative control for the establishment of an independent licensing authority. Attempts to balance supply and demand are not on because of measurement difficulties. We had a supply and demand provision since 1944 but it was found to be completely unworkable. Under a qualitative licensing system there is no correct distinction by which the Minister could make fish of one and flesh of the other. There is already a cross between the provisions through which licensed hauliers can engage in own account transactions and own account hauliers can carry for reward if they have licences. That will be coming up in later sections. No one in future will be entitled to hold a licence without holding the appropriate qualifications and continuing to hold them.
The Minister spoke of an attempt to fit supply to demand. The market will settle it in the future but a number of people are worried about it. Professional hauliers now have more room for optimism than at any time. I have figures here from the Eastern Regional Development Organisation which show the change from 1964 to 1983. There was 83 per cent own account in 1964 and it was down to 59 per cent in 1983. Hire reward was 17 per cent in 1964 and it reached 41 per cent in 1983. Therefore, there are grounds for optimism though there may be some bruising in the intervening period and mercy will have to season justice in certain circumstances.
Paragraphs (a), (c) and (d) are fairly specific — the Minister can revoke or suspend licences. However some hauliers have said that paragraph (b) is nefarious and they would like to have an explanation of it — what offences are likely to lead to revocation of licences?
The paragraph states:
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.
It is obvious what the offences would be under this Bill, and other Acts would cover insurance, tax and other matters.
Question put and agreed to.
NEW SECTION
Amendment No. 4 in the name of the Minister was discussed with amendment No. 3. Is the amendment agreed?
Can we discuss it now?
No. We can discuss section 6 but not amendment No. 4. It was taken with amendment No. 3 for discussion purposes. As I told the Deputy, we can discuss section 6 but not amendment No. 4.
We were concentrating on the substance but there is one point I wish to raise with regard to section 6 (3). It is more a question of phraseology than anything else.
We can talk about it on the section.
I move amendment No. 4:
In page 6, before section 6, to insert the following new section:
"Appeals. 6.—(1) Whenever the Minister refuses to grant a licence under this Act or proposes to revoke or suspend a licence granted under this Act, he shall notify the applicant for the licence or the holder of the licence of his decision or of his proposal, as the case may be, and of the reasons therefor and shall, if any representations are made in writing by such applicant or such holder within twenty-one days, consider the representations.
(2) Whenever the Minister having considered any representations made by the applicant for a licence maintains his decision to refuse such licence, or decides, having considered any representations that may have been made by the holder of a licence, to revoke or suspend the licence, he shall notify the applicant for or, as the case may be, the holder of the licence of the refusal or decision and such applicant or such holder may within twenty-one days appeal in the prescribed manner to the District Court against such decision.
(3) On the hearing of an appeal under this section, in relation to a refusal to grant a licence under this Act or a decision of the Minister to revoke or suspend a licence granted under this Act, the District Court may either confirm the refusal or decision or may allow the appeal and, where an appeal is allowed, the Minister shall grant the licence or shall not revoke or suspend the licence.
(4) A decision of the District Court on an appeal under this section shall be final save that, by leave of the Court, an appeal from the decision shall lie to the High Court on a question of law.
(5) In this section "prescribed" means prescribed by regulations made under this Act by the Minister with the consent of the Minister for Justice which regulations the Minister is hereby empowered to make.".
Subsection (3) of the amendment states:
On the hearing of an appeal under this section, in relation to a refusal to grant a licence under this Act of a decision of the Minister to revoke or suspend a licence granted under this Act, the District Court may either confirm the refusal or decision or may allow the appeal and, where an appeal is allowed, the Minister shall grant the licence or shall not revoke or suspend the licence.
The phraseology "the Minister shall grant the licence or shall not revoke or suspend the licence" is inelegant to say the least of it. Perhaps it could not have been made any clearer in legal terms but I think the phrase if very odd. What I find rather puzzling is the use of the word "or" twice in the sentence.
We are dealing with the substitute amendment on the white sheet of paper.
Has that improved the appearance of the subsection?
It did not improve it. Otherwise we would have done so.
It seems to be the same but perhaps because of the punctuation there is some improvement in meaning.
I agree that the phraseology is rather cumbersome. The Parliamentary Draftsman had the dual task of incorporating the positive application and the negative matter of the possible suspension of the licence.
What created the original confusion was the attempt to be positive about a negative application. I suppose lawyers of various grades will be well rewarded for interpreting the subsection and I do not think we should delay the House any longer.
As we know, lawyers are always well rewarded, whether the circumstances are difficult or easy.
I suppose the main motivation is the enrichment of our jurisprudence.
Amendment agreed to.
SECTION 6
Question proposed: "That section 6 stand part of the Bill".
I am rather confused as to what section we are dealing with at the moment. Are we dealing now with the section concerning notification of change of vehicle? Is that correct?
Yes.
The thrust of the Bill is to liberalise. Two years after the placing of the measure on the Statute Book the three European criteria will apply, with the minor additions the Minister has mentioned in our context which have obtained since 1933. I wish to know the reasoning behind this obligation to notify. Subsection (1) states:
The holder of a carrier's licence shall notify the Minister in writing of any change which he desires to make in the number or type of authorised vehicles to be operated under the licence and shall return the licence to the Minister for the purposes of subsection (2) of this section.
I am sure there is a good reason for doing that but in the context of liberalisation some explanation is needed. For example, is there any intent to confine any company to a specific number of vehicles or will there be any inhibition on the size or the development of a company? Subsection (2) states:
Where a carrier's licence has been returned to the Minister in compliance with subsection (1) of this section, the Minister may either issue a new licence in substitution for the licence so returned or amend the licence so returned, to take account of the change notified under that subsection.
Is this purely a matter of notification? Is there any competence in the Department to sit in judgment on this notification? What is the reason behind this provision? Subsection 3 states:
A person who fails to comply with the requirement of subsection (1) of this section relating to notification shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.
There must be a reason, although it may not be a grave one, seeing the fine is set at £100. I would like the Minister to tell me the reasoning behind the section and to enlighten the House.
There is no sinister motivation behind this——
I did not use the word "sinister".
As Deputy Wilson said, this is liberalising legislation as far as road haulage is concerned, something for which people have been calling for a long time, and there is no question of curtailment of numbers of vehicles. When a haulier is getting a licence he will have to specify the vehicles he has, and the numbers which will be recorded on his licence. If he wishes to have further vehicles added, they too must be recorded on the licence and if he reduces the numbers the same procedure applies. The idea is that there should be some documentation, first, as far as tax and insurance are concerned and second, and more important, the haulier would not be in a position to give away one of his vehicles to another person who did not have a licence to operate as a haulier. In other words, the numbers are recorded on his licence and there has to be a record of all the vehicles he has. That will be the main control and will stop a haulier from giving one of his vehicles to another person to set up as a haulier when he has not complied with the regulations. As the Deputy pointed out, the fine is relatively moderate in current money terms, even though inflation will be down to zero by the end of the year.
Most hauliers would give £100 away as a tip. The Minister mentioned car tax and insurance. Am I to take it that the Department of Communications will have some competence in this regard? Or, was he referring to the existing powers the Department of the Environment have? Will the vehicle in action be compelled to show a plate or some notification indicating that it is licensed under this legislation? In other words, will there be a plate or some notification on a truck, for example, giving the information corresponding to the register in the Department?
The Department check the car tax books when they are sent in —there is nothing new in that—and the vehicles have to be insured before the tax is issued. There will be plates on each truck. One of the reasons it is important that we should keep this register is that a haulier could give a plate to somebody else who could set up his own operation giving the Garda the impression that they were fully licensed. These plates will be displayed on all vehicles which are appropriately licensed.
That makes sense.
Is it not true that at present plates are displayed on all such vehicles? Is it not true that there will be a curtailment of the number of vehicles? involved because the business available will determine the number of vehicles? Last year a fleet of trucks in my area were taxed and insured for the year but the southern firm with which they were doing business collapsed and the vehicles were lying idle. In such a situation, it should be possible for these firms to get a tax refund when the vehicles are not on the road. This gentleman I was speaking about took the cars off the road for a number of months but because of the bad weather he got six months' work delivering straw and hay. Cognisance should be taken of all the circumstances in cases like this.
As the Deputy said, plates are currently displayed. As regards the last point, this is another unfortunate result of the knock-on effect of a business collapsing. This is a point many of us may not appreciate unless it happens in our own area. As regards a tax rebate, that would be for the Department of the Environment to decide. As regards the curtailment or loss of business, there are two schools of thought. Deputy Wilson outlined the case that after initial difficulties the hauliers will get a larger section of the market. The trend has been from own account transport because under the régime which we are introducing there will be the possibility of some of these firms becoming larger and more efficient. There will be difficulties for some but my personal view is that the road haulage business will increase.
Co-operatives, Roadstone and other firms are not going from own account to hauliers but from own account to their own staff, and they are selling the trucks to them. This has become very evident over the last number of years. I worked in a co-operative and the GNR transported most of the butter from the south, the fertiliser from Gouldings in Dublin and so on, but with the closure of the railways and the problems of handling, firms were compelled to go into own account in a very big way. Own account transport does not pay at present and instead of giving it back to hauliers, firms are selling it to their own drivers. That trend will develop very much in co-operatives in future and must be taken into consideration in the matter of transportation.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
This re-enacts in a modified form section 8 of the Road Transport Act, 1971 as amended by section 4 of the Road Transport Act, 1978. Here again we come across the difficulties of referring to other Bills. The purpose of the modification is to confine the grant or restricted road freight licence to non-resident operators. It is proposed that the section will not be brought into operation for two years. In the meantime qualified resident operators will, as now, be granted road freight licence. After that time such operators will be entitled to the new carrier's licence, so that the provision for non-resident operators to get the restricted road freight licence would then be of no value.
This is a fairly comprehensive section and a fairly comprehensive area in transport. I would like to ask the Minister a question in regard to the phrase "a restricted road freight licence". Is this a new term in transport legislation? We had the type of "restricted to area" licence, freedom from licence, at one stage for definite areas. Do I take it that we are talking here about a foreígn operator who comes into this country, picks up a load and brings it back out of the country? Is a restricted road freight licence really a way to allow someone from a foreign country to come in, pick up a load and go out, and is he not allowed what we call in air transport a fifth freedom right? Must he take the load out of the country to his own country or can he drop it somewhere else? The Bulgarians were operating here for a while. Would they be allowed to pick up in Ireland and drop in Germany en route to Bulgaria and drop at home if they had a section of their load then? I would like a general statement on the whole international area, the bilateral road transport arrangement, how it affects them, how it affects the licences I have mentioned on Second Stage and earlier on Committee Stage of this Bill, the ones issued by the EC Council of Ministers for Transport. For example, is there any area to which this is confined or is it an open-to-the-world type of thing? Is it open to anyone to ask for a restricted road freight licence? I would like general clarification of the section.
As the Deputy has said, this deals with international activity. In the Road Transport Act, 1971 the restricted road freight licence was introduced. It has nothing to do with the restricted areas. It has to do with international activity with a view to allowing international hauliers to come in, pick up goods at one specific point and bring them abroad. That was then expanded in 1978 to include Irish hauliers who wished to involve in international transport, picking up goods here and going abroad.
They were also restricted from delivering internally.
Yes. What it does not allow is point to point activity in this country.
Even for Irish citizens?
Even for Irish citizens.
Are they barred now?
I will explain how it has developed. It is rather complicated. They can do precisely what they wish abroad but, of course, they are governed by the various permits they have. They can go anywhere in the world, they can drop off anywhere but the regulations of other countries, bilateral and multilateral regulations, come in. So far as we are concerned this licence does not allow them to operate point to point unless authorised by their permits. In regard to the current development we are reverting to the 1971 Act under which people outside this country can come in here to pick up or deliver, but it is not needed for own hauliers because now they will get the general licence which will entitle them to undertake this activity as well as the other activity. We are getting rid of the new provision of the 1978 Act and going back to the original 1971 Act. However, I want to qualify that. In the two year period before this becomes generally operative the people who have this restricted road freight licence may continue to use it. Qualified resident operators, as now, may apply for and be granted restricted road freight licence. In effect the restricted road freight licence authorises the national stage of an international journey.
This is a very important section. I mentioned the EC and the ECMT because, as the Minister and the House know, the whole transport question is perturbing the EC. The EC Parliament took a kind of action against the Council of Ministers—and won it—to try to prod them along into developing an EC transport policy. How do I relate that to this section of the Bill? The Minister has outlined what is meant by a restricted road freight licence. Is he empowered to have this section in the Bill and to put it through the Oireachtas without reference to or without making a distinction between other EC countries and countries outside the EC? The European Conference of Ministers for Transport covers countries other than EC countries. Is the Minister quite sure that he is entitled to restrict as far as the EC is concerned and, if so, could he say if there is a distinction between the countries in the EC and those outside it? Among those, I make a distinction between those outside the EC and members of the European Council for Ministers of Transport and those who are not.
As the Deputy pointed out, there is a move to liberalise transport haulage within the EC and, naturally, there may be developments in that area which will totally liberalise transport point to point pick-up in different countries. There are varying opinions on the advantages and disadvantages which that will bring to us. It is a matter which must be discussed but, as the Deputy will know from his experience, the rate of progress within the transport council can be extraordinarily slow. Section 8 (2) (a) of the Road Transport Act, 1971, states:
The Minister may by order declare that a licence or class of licence (as specified in the order) issued in pursuance of an international multilateral or bilateral agreement to which the State is a party by the competent authority of another State, an international organisation or a person or body acting on behalf of such an organisation, shall be deemed to be a restricted road freight licence.
As Deputy Wilson said, there is an EC and ECMT quota and there are also licences issued under bilateral agreements.
The Deputy asked about the ECMT quota. There are 19 countries involved and I understand that a list of those countries has been made available to the Deputy. The new section dealing with the point raised by him re-enacts this provision and extends its cover to any licence issued under an international agreement to which the Government are a party.
I have statistics relating to 1986, which are subject to confirmation by the Minister as he has up to date information, which indicate that Ireland's allocation of authorisations under EC regulations totals 204 and a total of 31 ECMT licences operating within 18 of the 19 ECMT countries. Obviously we have made deals with 18 countries in this connection. The nub of the question is whether the Minister is satisfied that the 204 authorisations under EC regulations and the 31 licences under the ECMT are not injured, so to speak, by this section. In other words, if an operator from France comes into this country he will do so under a restricted road freight licence. If he insisted on his rights as a citizen of a country forming part of the EC to pick up Murphy's stout in Cork to transport it to Dublin en route to Liverpool or Holyhead, how would that square up to what the Minister said in regard to the limitation he was putting in this section?
He cannot operate within this country under his licence with regard to transporting goods from one point to another. His restricted licence allows him to pick up a load for delivery internationally but, if there is a bilateral agreement to drop it in Liverpool, that is all right as far as we are concerned. I do not know whether such facilities are available. They may be under certain bilateral agreements but in regard to this country he would be operating under his permit which would be deemed the operative element for this restricted licence. He can pick up or deliver a load but he cannot operate from point to point in this country. This section re-enacts the provision which existed heretofore and extends the cover of any licence issued under an international agreement to which the Government are a party.
This is all very well until someone thinks it profitable to take it to the European Court.
Could the Minister say whether anyone in Europe has been consulted about the section and if he is satisfied that there is nothing in it which might get us into trouble with the EC, which is legally the important one, or the European Council of Transport Ministers?
We do not anticipate any difficulty in that regard. We have sent a copy of the Bill to the Commission and there is a move in regard to the liberalisation of transport. However, looking at the other side of the coin, we could not move goods from one part of France to another as they have restrictions in that respect. I do not know when or if full liberalisation will be introduced but if there were difficulties and a case in the European Court succeeded it would have done what the European Ministers for Transport have not done so far and would be welcomed by many people.
International regulations are very restrictive. They are tied to demand, expanding economy and price controls. Does the Minister agree that it is time to take a wider view of this issue in the EC context?
Of course regulations are extremely restrictive and we are in favour of liberalisation so that our hauliers can operate internationally as business people. There are conditions and naturally we want to protect our industry. I agree that in some countries they are very restrictive and that they are determined to hold on to them.
Would this restriction stop hauliers from Northern Ireland operating here?
As far as this Bill is concerned they would be covered by the restricted licence.
Does that mean that people operating in County Fermanagh can only cross the Border into County Cavan under this type of licence? Does that cover all goods? I know some companies who have plants in County Fermanagh but who operate south of the Border. If this is the case the provision is a trouble-making one.
As far as own account operators are concerned they do not need a licence but they could not cross the Border and carry goods around any county. As far as hauliers are concerned their permits in Northern Ireland are treated as a restricted licence. They cannot engage in point to point haulage within the Republic.
There are some difficulties which will probably come to the Minister's attention when this is on the Statute Book. One of the difficulties is that some of the people concerned have businesses in both the Six Counties and the Republic. I have already had representations about difficulties encountered by Irish citizens in the Six Counties and by people from the Six Counties operating in the South. I cannot come forward with any suggestion for a solution except to abolish Partition.
That is outside the scope of this Bill.
The greatest complaint from hauliers is that they completely disregard the lifting and laying regulation. By using accommodation addresses they are free to operate and lift and lay within the State. It has caused serious problems not only in this area but in another area of manufacturing. The hauliers are concerned about it.
I agree with the Deputy but that is more a matter of enforcement. There are sections later on in the Bill which will deal with that. As regards Deputy Wilson's point, where there are two sections in a business they can have licences in each area but they obviously would not be in a position to engage in distribution activity which might involve picking up goods in one part of the Republic and delivering them to another. I can see the difficulty but not the solution.
Is there parallel legislation in Britain and the Six Counties? Is it exactly the same, similar or what? I have had representations on various aspects of the cross-Border question. There is a feeling among some of those who operate trucks in the south that there is a change in attitude towards them.
As I understand it the legislation is roughly the same. We have a bilateral agreement with Britain but there is the restriction we have been talking about which is the key point. It is not possible to have a point to point operation within Britain.
The sooner we have consolidation of all this legislation the easier it will be for the House to deal with this area. Subsection (3) states:
Sections 9 and 34 of the Principal Act (as amended or extended) shall not apply to a person who is the holder of a restricted road freight licence or a licence deemed by order under this section to be a restricted road freight licence when that person is engaged in merchandise road transport under and in accordance with the terms of the licence.
What is that all about.
I did not get the reference.
It is subsection (3) at the bottom of page 6. What we are deciding will not apply to a person who has an international restricted road freight licence?
The obligation to hold a merchandise licence under the Act or to have a plate.
Thank you. Subsection (4) states:
(4) The Minister may at his discretion charge a fee of such amount as he may determine in respect of a restricted road freight licence or a licence deemed by order under this section to be a restricted road freight licence, or a licence or class of licence issued by the Minister or by the Department of Communications in pursuance of an international agreement relating to international transport by road to which the Government or the State is a party, or an agreement, arrangement or resolution relating to such transport to which the Minister is a party.
This is interesting in that it seems to expand the area covered by the Bill. I do not know why there is a distinction between the Government and the State. What scale of fees is the Minister thinking about? What is the position regarding other countries, either EC or ECMT ones, in which we may be operating? What scale of fees have they?
This section re-enacts existing provisions empowering the Minister to charge a fee in respect of a restricted road freight licence and a licence deemed to be a restricted road freight licence. Those deemed to be restricted are those permits under bilateral road transport arrangements referred to earlier by the Deputy — ECMT licences and EC multilateral authorisations.
As regards fees, we are re-enacting the existing provision. I do not have the scale of fees to hand but I can easily provide them for the Deputy. They are fairly substantial. We do not have an automatic comparison with the fees that are charged in other countries but I understand there are fees in most of the countries. I do not have the details with me at the moment but I understand they are fairly substantial and I will send them to the Deputy.
They are not regarded as punitive.
They are not regarded as punitive but they are not what one would have as ready change in one's pocket. The point is that the people who will pay them are not our own citizens.
I understand that, and I think the Minister did mention——
They are not meant to keep it along——
No. The Minister would run into trouble with the EC if they could be so construed. The Minister mentioned something nominal, like £20, with regard to our own hauliers. Am I right in thinking that figure was mentioned by somebody earlier on in the debate? I take it from what the Minister has said that the fees that obtain as of now with regard to international hauliers are substantially higher than that.
I do not have the figures so I cannot answer. But I understand that they are not inconsequential. I will get the figures for the Deputy.
I am not raising it as a matter of curiosity but in the context that the competition commissioner might have a look at them and compare them with whatever fees are being charged internationally and might come to a certain conclusion if they were out of kilter. Specific information about the amount would not necessarily help the House but we have an obligation with regard to competition. The Minister mentioned a scale of fees. Did the Minister mean that the fee was related to the size of the vehicle, or the type of load, or the type of business in which the haulier might be operating?
There is one fee of £20. But there can be variations depending on whether it relates to a multilateral operation or a bilateral operation. I do not have the actual figures but the Deputy need have no fear about difficulties with the European Commission.
What is the purpose of raising this fee? Is it to control the operation in these cases so that it is organised from an administrative point of view and the Department have control of it, or is it a revenue raising objective? What sort of criteria will he take into account in fixing the amount of the fee to be charged from time to time?
Our own people involved in the haulage business are charged various taxes so it is only fair and equitable that as far as the restrictive licences and people coming in to this country are concerned, there should be some revenue involved in the licences to operate here, but they will not be punitive in any way.
What sort of criteria does the Minister take into account in fixing the amount? What does he base the figure on? Does he take the figure out of the air or is it based on something?
The general criteria to be used are the elements of cost of administration and issuing of these licences. This could be substantial at times dealing with what could be relatively involved documents if the documents and other matters were not in order. That is the basis of it. I do not think it will be a major revenue earner.
As I understand the Minister's reply now, it is only to cover the administrative costs of organisation and administration in his Department rather than to raise revenue. Would it not perhaps be appropriate that there should be a revenue raising element in this scheme in respect of these multilateral operations? If these operators operate here, why should they not make some revenue contribution also over and above the administration costs?
Administration costs are the basis for it. I did not rule out other elements as well. But we must also take into consideration charges levied on our own hauliers in other countries. We need to be as flexible as possible in that area. I have no doubt that the fees will change from time to time but we will use, as the general basis for the operation, the cost of administration. The possibility of raising revenue is still there because these would be users of our road structure and other facilities. But our charges must be in relative conformity with the charges imposed by other countries for the same type of service or the authorisations.
Before we leave the international aspect of the Bill I would like to ask the Minister about an anomaly which might occur. As the Minister knows, the EC Transport Ministers agreed on a 40 tonne axle weight and both Britain and Ireland got a derogation and are allowed to adhere to the 38 tonne weight. The restricted road freight licence will be given up to the time we and Britain feel that we are ready for the 40 tonne weight. Will the Minister be in a position to put a provision in his licence that only a 38 tonne axle weight load can be taken? There is no point in a haulier having a licence if he falls through the bridge at Skeheenarinky and is not able to get any further. If we in our wisdom specify 38 tonnes as the maximum load acceptable as of now, even that type of operation will hammer our roads, some of which at the present time are barely able to take an ass and cart in places. Will the Minister be in a position to indicate that that type of load is all that we can cope with at present, if we can cope with it?
As the Deputy will be aware, there is divided authority here as between the Departments of Communications and of the Environment. The same situation arises as far as the councils are concerned and our representation there. It is not proposed that there be any specific mention of or provision for this in the licence issue. The question raised by the Deputy is already fully covered under regulations of the Department of the Environment so that the heavier trucks will not be able to come in during the derogation period. That is very adequately covered already under those regulations. It is not proposed as being appropriate to this area of licences. The House need have no fear; it is covered.
Am I to take it, then, from the Minister that when the French haulier applies for a licence to his Department, the Minister in his communication with the applicant will refer to the regulations made by the Department of the Environment?
Yes.
It would be only fair to the customer who is looking for such a licence, that he should be so informed and would not be coming into the country under a permit from one Department of State and having himself hauled into court by another Department of State.
My first answer is that the haulier should be aware of these matters if he is an experienced haulier. The suggestion which the Deputy has made that there should be some information given to the applicant and that the various regulations covering the weight of trucks should be pointed out to him is only reasonable. I shall seek to have the facility organised that that matter should be brought to the attention of the haulier.
I think that it should be carried on the Vote for the Department of the Environment and the leaflet should be made available to the Department of Communications.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 be deleted."
This section provides for a technical amendment to section 5 of the Road Transport Act of 1978 to cover the agreements made by the Government. In addition to that amendment, the section in question had to be amended to take account of the Dublin Transport Authority Bill, 1985. The two amendments were affected by section 29 of the Dublin Transport Authority Bill, 1985 which was passed by the Dáil on 19 March 1986.
I understand that that Bill is now with the Seanad. It has not passed the Oireachtas yet.
It was passed by the Dáil, but not yet by the Oireachtas.
Perhaps the Minister would help the house by spelling out in detail why section 29 of the Dublin Transport Authority Bill as passed by the Dáil forced the deletion of section 8 which went as follows:
Where an international agreement relating to international transport by road to which the Government or the State is a party, or an agreement, arrangement or resolution relating to such transport to which the Minister is a party so requires, the Minister may by order exempt from the provisions of section 7 of the Road Transport Act, 1932, sections 9 and 34 of the Principal Act (as amended or extended) and sections 6 and 7 of the Road Transport Act, 1935 (as amended or extended) or from any of those provisions any specified class of vehicle or any specified class of such transport.
Could the Minister spell out for us the original purpose of section 8 and in simple terms state why it is not now necessary in view of the Dublin Transport Authority Act of 1985?
The section empowers the Minister to exempt by order any specified class of vehicle or specified class of transport under certain provisions of the Transport Act. It extends the provision relating to agreements to which the State or the Minister is a party to certain agreements to which the Government is a party. Modification was consequential on amendment of section 8 of the 1971 Act being effected under section 7 of this Bill. This was in two Bills, both the present one and the Dublin Transport Authority Bill. That was questioned and the advice was that it should not be incorporated in the two. As the Dublin Transport Authority Bill was the first to pass through the Dáil, it was felt that it should be incorporated in that Bill. The amendment was effected to the Transport Authority Bill and passed in the Dáil on 19 March 1986.
My memory of the Dublin Transport Authority Bill is that it referred to the area covered, in the old terminology, by Dublin Corporation, Dún Laoghaire Borough Council, Dublin County Council — new areas now. Is the Minister saying that a provision in the Dublin Transport Authority Bill which was delimited in area, admittedly with powers in it for the Minister to extend the area, in the context of a Bill which referred to those limited areas that I have mentioned, is now to be applied in the wider national context?
This is very much a technical amendment, as the Deputy will be aware, of section 8 of a previous Act. This is in order to include a reference to agreements made by the Government in addition to agreements as already specified made by the State and by the Minister. It is possible that some of the various agreements would be between Governments. It is in order to cover that technical aspect. The provision in the Dublin Transport Authority Bill was an amendment to a previous Transport Bill which has already covered it. As the Deputy will be aware, many of the provisions that we are making here are for incorporation with or insertion in earlier Transport Bills. The particular activity that we were seeking to accomplish here has already been accomplished by the Dublin Transport Authority Bill.
What about the point I made that the Dublin Transport Authority Bill was restricted by definition to the old Dublin Corporation, Dublin County Council and Dún Laoghaire Borough Council areas, with power to expand those if necessary? Does that tie this Bill? The fact that it was in the context of the Dublin Transport Authority Bill will not mean that it relates only to the areas that I mentioned, but to the whole country?
It is precisely the same amendment as we were going to make, with the same effect. It has been accomplished in the Dublin Transport Authority Bill.
It would cover the whole country.
That is right. The Dublin Transport Authority Bill also had to incorporate the extra element whereby licences issued by the Dublin Transport Authority would also be covered as well as licences issued by the Minister. The incorporation that we are referring to does precisely the same thing, with no limitation as regards the area covered by the Dublin Transport Authority, as we would have done had this been the first Bill. It would have been unnecessary in that respect to include the amendment with regard to the Dublin Transport Authority.
The whole purpose of section 7 and section 8 is to facilitate international haulage. Time and time again deputations which the Minister met and which I met asked for something to be incorporated in this Bill. This would be an appropriate place to do so to facilitate customs procedures. It is worth putting this on the record of the House because it is causing much trouble in Europe in particular.
I understand that the EC are working on that. The point made by Deputy Wilson is very well made. There is activity in that area.
Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
This section has been slightly controversial:
Section 112 of the Transport Act, 1944, is hereby amended by the addition of the following subsection:
"(6) Where a vehicle (being a mechanically propelled vehicle or a vehicle drawn by a mechanically propelled vehicle)—
(a) is hired to a person under a hire-purchase agreement (within the meaning of the Hire-Purchase Acts, 1946 to 1980) or is otherwise rented or leased to the person under an agreement, and
(b) the owner of the vehicle neither provides a driver nor causes a driver to be provided,
then, the person to whom the vehicle is so hired, rented or leased shall, in relation to subsections (1) to (5) of this section, be deemed to be the owner of the vehicle."
I understand from that that subsections (1) to (5) refer to the Transport Act, 1944. We would be able to have a more intelligent discussion on this if the Minister would give us information on subsections (1) to (5) of section 112 of the Transport Act, 1944. As the Minister has very pointedly stated, the sooner we have a consolidation of these Acts the better. There is such a maze of sections and subsections in the various Acts that we have to strive to keep our minds clear on what exactly is happening.
Section 112 (2) of the Transport Act, 1944, is an exceedingly long subsection. It states:
Where—
(a) merchandise, which is supplied by a person in the course of a trade or business carried on by him is, for the purpose of delivery to the customer, carried in a mechanically propelled vehicle owned by that person or in a vehicle drawn by a mechanically propelled vehicle owned by that person, or
(b) merchandise, which is to be or has been subjected to any one or more of the following processes, namely, repairing, cleaning, laundering and dyeing, by a person in the course of a trade or business carried on by him is, for the purpose of collection from or delivery to the customer, carried in a mechanically propelled vehicle owned by that person or in a vehicle drawn by a mechanically propelled vehicle owned by that person, the merchandise shall, for the purpose of the Act of 1933, be deemed not to be carried for reward.
The new provision for section 112 we are proposing here provides that where a person leases or hires a vehicle without a driver to carry his own goods he shall be deemed, for the purpose of section 112 of the Transport Act, 1944, to be the owner of that vehicle. In other words, where he has hired a vehicle without a driver it is treated in the same way as if he is the owner of the vehicle. The new provision and repeal of the Road Transport Act, 1956, will in effect extend to own account operators. It will give them the facility to lease or hire vehicles which is at present enjoyed by licensed hauliers. People who can do that are users of vehicles of 2.5 metric tonnes unladen in weight. The Road Transport Act, 1956, in order to close a fairly obstruse loophole in the legislation, effectively imposed a requirement to have a merchandise licence when using a hired or leased vehicle other than a vehicle hired under a hire purchase agreement to carry own goods. As people familiar with the trade will know, there is a desire to lease or hire vehicles without actually owning the vehicles. This will facilitate that and will be regarded by many people as good business and the most appropriate way to run their affairs. Provided there is no driver with the vehicle the person shall be deemed to be the owner of the vehicle. It is treated in the same way—the non-requirement of a licence — as the own account operators. However, if they wish to operate in haulage in addition to their own account then they would be required to get a carrier's licence as would any other carrier.
There have been various views on this section. The Confederation of Irish Industry welcomed this provision. If an own account operator wants to lease five trucks for a season or six months, must those trucks already have from their owner a licence and plate? Why is the distinction made between the leasing of a vehicle without a driver and the leasing of of a vehicle with a driver? What is the raison d'etre for that distinction? I am aware that own account operators have been very anxious to have this facility while others have expressed doubts about companies that are involved in very heavy seasonal work and then have a largish fleet under-utilised or not utilised at all for other periods of the year. Will the Minister say what he thinks of the fears being expressed by owners of large fleets that are fully occupied seasonally but are available for lease or hire for long periods of the year?
At the moment a person using leased trucks must have a licence in order to operate those trucks legally even though he is operating them on own account only activity. The effect of this provision is to remove that requirement so that an own account owner leasing a vehicle in the future for such an operation will not require a licence for transporting his own goods.
Is the Minister saying that such a person will not have to have a licence at all? Will he not have to have a base licence for one truck before he can go into leasing?
Not if he is an own account operator. An own account operator, provided he does not get involved in haulage outside his own activities, will not need a licence. Previously he did not need a licence as such but he needed one if he was using a leased truck, not a truck on hire purchase. We are removing the necessity for a person to get a licence when he leases a truck. An own account operator up to now did not need a licence provided he was operating his own trucks or had trucks on hire purchase but he did need a licence if he leased trucks. We are removing the requirement to have a licence when he leases trucks. That movement is taking place within the industry and many people find it more profitable to lease than to have their own fleet.
Is such a person still confined to own account operations?
Yes. An own account operator is confined to his own business with the leased truck as well as with his own truck. However, if the own account operator wants to get involved in haulage outside his own activities, as happens, it is up to him to apply for a licence like anybody else. If he meets the various conditions he will be granted one.
If an own account operator decides to take a short term lease on trucks that are already licensed for ordinary commercial haulage, if the trucks he leases are plated and fully licensed by the State, what is his position? Is he still confined to own account operations or can he use such vehicles for more general trading?
We are certainly getting involved in the finer points.
Those points have been put to me.
He can lease one of those licensed trucks but it is of no advantage to him to do that. The fact that the plate is on display will not be of any advantage to him. It is important to note that he cannot lease such a truck with a driver; he has to lease it in the ordinary way.
What is the significance of that?
Such a person is not hiring in an outside activity, he is bringing in a truck within his own operation.
An in-house operation?
Yes. He would not be bringing in an outside driver. If one leases a vehicle with a driver one is engaging a person to carry, and carriage for reward is then involved. A licence is necessary for that. Trucks can be leased in but that does not confer any advantage over trucks that do not have plates. A difficulty would arise if the truck and driver were leased in. Different rules apply in regard to that.
Will the Minister agree that we are meeting a kind of supremacy of artificiality in draftsmanship in this case. It appears to me that in respect of the one vehicle we will have (a) the person who is the owner of it and (b) the person who is deemed to be the owner. Is it not possible for the parliamentary draftsman to find a simpler way of dealing with this? I can see the point in having the section but if the section ties up one loophole is there not a possibility that it might open up another? Will it enable a person to carry on a haulage business if he has the right contacts without a licence? That person may have the truck but instead of entering into a haulage contract with a firm he can lease the vehicle for three days a week and while he does not put a driver with it he can say to the firm that the driver does not go with the vehicle but a Mr. Joe Soap is available for work. There could be a succession of arrangements under which the vehicles could be let for a short term to different firms. It appears that that arrangement would be perfectly legal because the haulage operations would be done by the lessee of the vehicle.
What is envisaged I would assume is that the operator of own goods would have a vehicle for a long term and not for a short term. If that is the intent, would it not be necessary to provide for that kind of situation? Otherwise, it might open up a possibility under which a truck owner could carry on a haulage business without any licence because the running would be done on an own goods basis on a series of short lets.
I am very sympathetic to the point raised by the Deputy as regards the wording and drafting of this Bill. It all goes back to the fact that we are amending in this Bill previous legislations and complying with the great desire for a consolidation of it.
I agree with the Minister of State.
Involved in this Bill at one time or another are the Road Transport Acts of 1932, 1933, 1934, 1935, 1956, 1971 and 1978 and the Transport Acts of 1944 and 1958. We had a casual reference to the Dublin Transport Authority Bill which is going through the House.
The Minister of State should have put that in at the end.
That is one of the difficulties which arises. There is nothing to stop a person who may be an own account operator and who has his own trucks from engaging in extra activity in bringing in a licensed haulier — this would not be leasing as such — for a particular consignment or for a busy period. The haulier in that case would be operating under his own flag.
It would not be practicable to provide forever against short term leasing once long term leasing has been allowed. The question of phasing between long and short term leasing has been considered but on balance it was thought better and more realistic to deal with the whole matter in one provision. There was removal of control on smaller vehicles in 1978. Because in the exempted areas, control on haulage operations never existed the leasing question is marginal. There was never any restriction previously on long or short term leasing by own account operators in the exempted areas.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill".
We already had a slight discussion on this with regard to keeping a list of licences and the wearing of insignia, so to speak, by the actual trucks and the importance of this to law enforcement, information etc. This section covers the register of the licences. From what the Minister of State has said and from my own study of the Bill I can see the need for this.
Subsection (2) states:
the Register shall at all reasonable times be open to inspection by any person on payment of a fee.
This is true, and I speak as one less wise on these matters, of wills also. There is general access to wills and it is easy to see why that should be so. I am not all that sure as to why it is necessary in the case of the register of carriers' licences.
The register should be open to inspection by the law enforcing authorities and, possibly, by customers. I am only trying to speculate as to the reason for a general inspection being available to the public. This is probably a good thing. It is not the usual kind of thing but one can go and pay a fee and look at the register to see who is on it. I can see the reason in the case of law enforcement or in the case of a major customer in the context of ensuring that one is dealing with a haulier one can trust. The very fact that he has a licence covering the areas we have mentioned several times already — good character, sound financial standing and so on — should be an insurance and consolation for the person who is employing him.
One of the general regulations is that any person shall be entitled to obtain from the Minister a copy of any entry in the register on the payment of a fee of such amount as shall from time to time be prescribed. Subsection (5) is the usual one about proof that it is a true copy etc. I am in general agreement with the provisions of section 10. Perhaps the Minister of State would indicate briefly the reasons for open inspection? Is there a special reason for this with regard to the register of carriers' licences?
There always have been inquiries flowing to the Department in the past as regards who are and who are not holders of licences.
I can see why under present circumstances. I was thinking of the future.
I would accept immediately what the Deputy says about their situation not being directly comparable. It is very valuable that this should be there as a provision. There will be a question of people in one area wishing to know how many licensed carriers there are in that area, perhaps, with a view to setting up a business or seeking a carrier's licence and if there was a proliferation of carriers' licences in the area, backing off from the idea. It would be valuable for them to know what the extent or the saturation was before they go into it.
I can also see the Irish Road Hauliers' Association seeking this type of information on a regular basis, seeking information also as to the number of vehicles licensees have. Naturally, the association will be interested to see if there is any breach of the law. Overall, it is a wise provision and if it were not included, the Deputy might be putting forward the point as to why it should be there.
I welcome it.
I have no doubt that as usual he will put forward a very cogent argument in favour of it.
I would regard it as absolutely essential that such a register be maintained and that the fullest possible information be made available to the public so far as these hauliers are concerned. The control of information should be considerably tightened up. The way these licensed hauliers with these articulated trucks operate is that they have the tractor unit and they will enter into a contract to haul a trailer for this owner or that owner. The tractor could have a different trailer behind it every day of the week. Those people have a nasty little habit of putting the critical registration number on the front of the tractor but then when the trailer is attached it hides the number at the rear of the tractor and you might find a number chalked on the back of the trailer which would have no connection whatsoever with the real owner — the vehicle might have changed hands three years before. That is just too bad for anybody who is hit by one of those vehicles which disappears in the distance, because all he can get is a number which might have belonged to another person months or years before and, of course, damages cannot be recovered.
The control of these things is inadequate. It should be made compulsory to have proper registration numbers on all of these vehicles front and rear, and there should be a proper enforcement system. The registration numbers should be clearly displayed on both tractor and trailer units. As well, it should be made clear to licensees that they have a strong obligation to show these numbers, that registration numbers should be updated and that, on a change of ownership, the number should be switched to the new owner so that it will be checkable easily. I know people who have suffered severe damage and when trying to trace the number were told: "Ownership changed three years ago".
Identification by registration should be easily ascertainable. With this in mind, there should be indexation and cross-indexation of registration numbers in the proposed register, giving the names of owners, the regions or areas in which they operate, etc.
I fully agree about the need for indexation and easy accessibility to information. I will bring these points to the attention of the people involved. Now that we are in the computer age there is no reason why this information should not be stored in computers so that there could be cross-references in regard to actual ownership. It is not the intention that the plates would be displayed on anything but the tractor units, but I accept the point made by the Deputy. The Department of the Environment have regulations, but as far as enforcement generally is concerned, we will be dealing with it in later sections of the Bill. We all have an obligation to make as much information as possible available about the working of all services, with certain limitations in certain areas. I would not regard this Bill as breaking any new avenues towards that.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
This is a very important part of the Bill which relates to what will happen if a licensee dies or becomes physically ill and incapable. An attempt has been made to deal with the problem reasonably compassionately, though we are not used to compassion in the law. This section is geared to individual owners of transport companies. I am in agreement with the provision that the Minister will be notified in writing of the death or incapacity of the company owner and in regard to relatives. This is contained in subsection (1). Paragraph (d) of the subsection provides that:
the Minister is satisfied that the relative has, prior to the death or incapacity of the holder, had not less than three years' experience in the day to day conduct of the business to which the licence relates, and complies with the requirement as to good repute referred to or specified in regulations made under the European Communities Act, 1972,
I find this very difficult to understand in regard to coming to the aid of a family bereaved by death. There could be a sudden death and the wife may not have been involved in the running of the business and perhaps the family may be too young to have been involved or to have gained the necessary three years' experience of the running of the company. There is, therefore, an implied hardship for such an individual family business.
As well, a limited liability company may be involved but that is not provided for in this section. A provision for a named individual who need not necessarily be connected with the owner of the company should be made — perhaps section 12 deals with it. Does the Minister think that in this section he could modify the three years' experience demand in regard to a company owned and developed by an individual, as many of these companies are. A company is started by one person who because of his arduous efforts to build it up, is probably likely to suffer a heart attack, leaving a wife and family. Can the Minister modify that to make it easier for such a family to continue in business by taking in a competent person to run the enterprise?
The new provision empowers the Minister to take into account the special circumstances that may arise from the death or incapacity of the holder of a carrier's licence. It is transferring a hardship clause already existing in the certificate to the licence, because there will be no need for certificates in the future. With regard to the central point made by Deputy Wilson, the problem is this is an EC regulation and we are not in a position to modify it. The regulation specifies that allowances can be made. The requirement to provide financial standing and professional competence established by experience is waived in such a case and the Minister is empowered to grant a licence to the relative of a holder of the licence if that person has had three years' experience in the day-to-day operations of the business and is of good repute.
I regret we cannot accede to the suggestion of Deputy Wilson with regard to modification. I appreciate the points raised by the Deputy, but the experience of the Department has been that generally the accounts and the business dealings of a firm are dealt with by the wife while the husband drives the trucks or other vehicles. While I appreciate the point made by the Deputy, I must point out to him that it is an EC regulation in force throughout the Community.
In pursuance of my thesis that there should be some modification, I advance the argument that until comparatively recently transport management was not a highly structured career but in the past few years it has been seen as a profession. Now there are studies leading to qualifications in transport management and now outside expertise is available. That is something that was not true in the past. Because of this outside expertise it makes it easier for a family in the circumstances I have mentioned to get somebody who is reliable and competent to run the business, even though that person may not be a relative. For that reason I urge that consideration be given to a modification of the existing provisions in section 11 (d) and I suggest that this could be done on Report Stage or during the debate in the Seanad. Incidentally, if it were done in the Seanad it would escape the financial clause prohibition. It would be in ease of people who should command the sympathy of the House. Many transport companies were started by enterprising individuals, many of whom worked long hours that would not be allowed now in the days of tachographs.
I pay tribute to the Minister for having this section in the Bill but I am saying it is not wide enough. I suggest that we should include a provision for the employment of a person, at least pro tem until the surviving spouse, member of the family or any of the other categories as defined by the Minister, could be available to do the work. I can see cases where, with the best will in the world, the Minister will not be able to allow some businesses to continue because the provisions set out in the section cannot be met by the family.
I support Deputy Wilson in what he has said. I have known a number of small haulage companies that eventually had to employ accountants to ensure that the businesses were run effectively. I can foresee cases where small businesses could fail because of the death of the husband, where the wife and the children would not be able to take over. I understand the point made by the Minister that it is an EC regulation but I urge him to reconsider the matter. Many efficient and profitable businesses could be threatened if the regulation is adhered to strictly.
I appreciate that we are tied to regulations. I know of two instances in my area where there was a death in the family but they struggled on and now those businesses are thriving. Had this clause been in force these firms could not have continued in operation. Serious problems could be created by strict adherence to this provision. I know the Minister is restricted by the conditions regarding competence and experience but I ask him to reconsider the matter seriously.
I appreciate and accept the points made by the Deputies but, notwithstanding my concern, I must repeat that this section is as lenient as the EC regulations allow. The three-year clause is inserted in EC regulations that govern the position of carrier throughout the Community. This is being put into the licence as distinct from the certificate. However, there are ways in which we can achieve the desired effect. Where a family business or organisation do not have a person qualifying under the three year rule, they can take in a manager, if he gets the appropriate certificate, and he can be the designated person.
There is another point covered in section 12. Firms can get temporary permission to carry on the business for a year — and this possibly can be extended to 18 months — until adequate arrangements are made. In conjunction with section 12 it will be possible to meet virtually all cases either through bringing in a manager who gets the competency qualifications or operating for a period of a year or 18 months.
I appreciate what the Minister said. He said section 11 was drafted as widely as the EC regulations allowed. The European Communities Act, 1972, is mentioned in section 11 (1) (d). Could the Minister give a more specific reference to the EC regulations to which he referred? I mentioned earlier the difficulties I had because the statutory instrument referred to 1972 although the date it carried was 1977.
I understand it is the same reference number I gave earlier — the European Communities Merchandise Road Transport Regulations, 1977, Statutory Instrument No. 386 of 1977, and given under powers of the European Communities Act. The document to which I was referring was the Official Journal of the European Communities, L308/19.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
This section has already been mentioned by the Minister and I would like to tease out a few points. Subsection (1) reads:
Where the holder of a carrier's licence dies or becomes physically or legally incapable of carrying on or managing the business to which the licence relates, or where a person designated in pursuance of regulations under the European Communities Act, 1972, dies or becomes physically or legally incapable of carrying on or managing such business, the Minister may, notwithstanding anything in the Principal Act (as amended) if he is satisfied that it is necessary in order to avoid hardship, grant a permission under this section on an application being made to him in that behalf by or the personal representative of such holder or person.
What exactly does "holder" mean? Does it mean the licensed haulage limited company to which the Minister had accorded a licence?
Subsection (1) empowers the Minister, if he is satisfied that it is necessary to avoid hardship, to grant a temporary provision for the business under the licence to be carried on. The person to whom the permission is given does not have to meet EC requirements. This provision caters for a number of circumstances. Where the licensee dies it allows a certain amount of time to settle the affairs of the deceased. The duration can be for a year and it can be extended by a further six months. Where the licensee or the designated transport manager becomes physically incapacitated or dies, it allows time for another qualified person to be appointed to operate or manage the business. Where a public company are granted the licence, the company are the licensee and they are the people referred to in the last part of this subsection.
Subsection (2) reads:
(2) A permission under this section shall authorise the business to which the permission relates to be carried on either by the person named therein or, as may be so specified, by such person subject to its being managed by another person so named.
A surviving spouse can nominate someone and the directors of a company which are the holder of the licence can nominate somebody. Is that so? If the managing director dies, and he was the only person with the necessary qualifications, what is the position? The individually owned company can specify somebody provided he or she has the necessary qualifications, but in the case of a company, who has to die or become incompetent before the provisions of this section can begin to operate?
So far as the company are concerned they are the designated competent person. When they get a licence they then designate a competent person. They will only get into difficulties when the competent person is incapacitated or dies. Under this legislation they will be able to carry on the business with another designated person but he need not be a competent person, for a minimum of one year, and that can be extended to 18 months. After that they must have a competent person in control. In the case of the family, the period of one year would give them adequate time for a person to become competent under this legislation.
This raises the question of the definition of the word "competence". Does it mean that the examinations, which are a new feature for all applicants after the two year delay, will have to be taken by the person who is to benefit by this concession?
Generally the main provision is the examination.
If the question arises up to that time, will the Minister have power to decide on competence?
The regulations are laid down and an examination is necessary as far as the licensee is concerned. The important point is that a competent person will not be needed for the first year or 18 months but after that one will be required.
He or she may be even more competent than the person who had the licence.
They need not have done the examination. After the 18 month period the person would be a competent person within the regulations and the main regulation covering a competent person is that that person has passed the examination.
Before the Leas-Cheann Comhairle puts the section to the House I would like to summarise my query. In both the case of individually owned companies where death or incapacity occurs and the case of a public liability company where a similar occurrence takes place with regard to the person who was designated originally when the licence was given, is the Minister satisfied that sections 11 and 12 cover the scene to the extent that the business can continue and that there will be no disruption pending, in the latter case, the end of the 18 month period and the appointment of a competent person?
Yes, I am satisfied, as I explained earlier and as the Deputy accepted, that we have gone as far as we can under the EC regulations. In addition, I am satisfied that we have covered all or practically all eventualities, I can see one difficulty where a small family business might not have the financial resources to employ some outside person or an appropriate person if there is a young family for instance. Therefore, we cannot say that we are absolutely, down along the line, 100 per cent certain that everything will be covered. As far as the EC regulations are concerned there is the difficulty which the Deputy has pointed out strongly about the three years, but, taking sections 11 and 12 in conjunction, we have gone as far as we can go on virtually all of the cases. A very exceptional hardship case may arise which is not within the EC regulations. If we were devising it ourselves from the beginning without being constrained by EC regulations, I cannot say we could cover everything, but we have gone virtually all along the line to meet the difficulties the Deputy mentioned.
Section 12 (3) (a) provides that a permission under this section shall remain in force for a period not exceeding one year beginning on the date on which it is granted. Under section 12 (3) (b) the permission can be extended for six months. Would it not be better to have a round figure of 18 months because, if there was a death, and an attempt to restructure and get a business back in operation, it would probably take that length of time to do it.
Again that is the EC regulation but I am not so sure it is not a good idea. After a one year period it might be very useful for some organisations who may have come through a traumatic period due to the death or disability of somebody to know in a very meaningful way that they had only a further 18 months with maximum extension. There would be a spin off benefit in that respect but here we are incorporating the EC regulations.
In a situation such as this would the Minister look into the question of sound financial standing again when a new person is applying for the licence?
A licence comes up for renewal every three years and financial standing becomes a relevant factor again in that respect. As far as the transfers here are concerned that condition was fulfilled in the original application and these are a method of trying to get a smooth transition when some difficulty has arisen in a firm through death or incapacity of one sort or another. Therefore, the condition of financial standing would have been satisfied either a short period before or would be due to be satisfied again when the licence came up for renewal. The matter has been well covered in that respect.
Question put and agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
This empowers the Minister to make regulations to introduce on-the-spot fines for certain offences as recommended by the Transport Consultative Commission, and the provision is very closely modelled in all respects under road traffic legislation.
This is a long and important section. A look at section 13 (1) (a) and (b) brings to the notice of the House the necessity for the consolidation of the Transport Acts. As the Minister stated, it is nearly impossible to pick one's footsteps through the minefield of transport legislation, and there is so much reference and cross-reference backwards and forwards to all the Acts the Minister mentioned which are listed on page 1 of the Bill. The Minister's reference to consolidation should be kept in mind. Indeed, I might envisage in the not too distant future seeking the Minister's aid from this side of the House in an effort to consolidate the Transport Acts.
There are several major presumptions in that.
Certainly.
One is that there would be a change in the House. The second is that the Deputy would be Minister for Communications.
The two sins against hope are despair and presumption and I deny that I am guilty of either.
In the event it would be the prerogative of the Taoiseach to decide on his Cabinet.
Speak on the section.
(Interruptions.)
I would say the Deputy would make an excellent Minister for Communications.
Get back to section 13.
There is a saying that possession is nine points of the law. I am talking about the Minister's very apposite appeal for consolidation of the Transport Acts. I would go further and say that the Finance Act is even worse but that does not justify the mix-up we have in the Transport Acts. As the Minister put it succinctly, section 13 is designed to make provision for on-the-spot fines. The procedure is humane and covers any kind of citizenship demands that might be made. If they have reasonable grounds for believing that a person is committing or has committed an offence to which this section applies, the Garda Síochána may deliver to the person a notice in the prescribed form stating that the person is alleged to have committed that offence. Then there is a 21-day notice:
(b) that the person may, during a period of 21 days beginning on the date of the notice make to a member of the Garda Síochána at a specified Garda Síochána station a payment of an amount specified in the notice...
I am sure that the House approve of that and of the fact that a prosecution will not take place during the period specified. In other words, if the person pays the fine within the period, it will avoid a court case, loss of time by the haulier and extra costs, as solicitors and barristers charge their clients for appearing for them in court. This side of the House approves of the section.
I should like to refer to my contribution on Second Stage regarding the difficulties Irish road hauliers have in Britain with regard to very large on-the-spot fines imposed on the haulier-driver. In the past — and I complained about this — a haulier-driver was put into jail pending arrival of the money necessary to enable him to go free. That point received publicity inside and outside the country when I referred to it previously. As far as this section is concerned, there is enough time given to pay the fine. I ask the Minister to examine legislation in countries in the EC and the ECMT to see if people are put in jail pending payment of fines. Perhaps that legislation could be modified and made more civilised. It has been alleged that there was discrimination against Irish drivers, although it is very difficult to get proof of this. However, if there is any suggestion of that it is the Minister's duty to investigate it to ensure that such a procedure is not adopted in future. Subsection (3) states:
Where a notice is delivered under subsection (2) of this section—
(a) a person to whom the notice applies may, during the period specified in the notice, make to a member of the Garda Síochána at the Garda Síochána station specified in the notice the payment specified in the notice accompanied by the notice.
(b) the member may receive the payment, issue a receipt therefor...
These are ordinary regulations which one would expect in connection with on-the-spot fines. The Bill specifically lays down that a prosecution shall not be instituted during the period specified in the notice and that the haulier has rights which are also defined.
Subsection (4) states:
In a prosecution for an offence to which this section applies, the onus of showing that a payment pursuant to a notice under this section has been made shall lie on the defendant.
In a way that derogates from the specific, clear and praiseworthy rights which have been incorporated in the section for the defendant. As the chief superintendent, superintendent or inspector of the Garda Síochána will be prosecuting in court, the onus should not be on the defendant but on the State to check beforehand whether the defendant has paid the fine within the specified time. It may be a minor point, but it is hard to justify putting the onus on the defendant in this matter. The Bill clearly states that the individual garda will specify the amount and the station at which the fine is to be paid. This being so, it would be a very easy for the State — the prosecutor — to check whether the money had been paid. After all, there is a provision that a receipt should be issued. Therefore, the State has the information and there is no justification for putting the onus on the defendant.
The difficulty of referring to other Acts was alluded to by Deputy Wilson, and section 13 deals with the Principal Act, the Act of 1932, the Transport Act, 1944, the European Communities Act, 1972, and this Bill, so we have the same difficulties in regard to clarity and orderly procedure. The important thing to note is that this gives the Minister the right to specify in the regulations the type of offences to which on-the-spot fines would apply. The intention is that the offences so declared would not be serious. The difference between this country and Britain, to which Deputy Wilson alluded, is that quite serious matters can be the subject of on-the-spot fines in Britain but it is not intended that offences attracting serious penalties would be involved in on-the-spot fines here. The fact that this is so should be welcomed by everyone, including potential offenders, if I can use such a phrase, because it saves the time of the courts, the Garda and officials in the preparation of a case. The kind of things which might be involved is failure of the driver to produce a copy of the licence, failure to have charts correctly filled and failure to record correct information in relation to the tachograph.
This section also enables the Minister to make regulations fixing the amount of on-the-spot fines for each of the offences listed. We are dealing with minor breaches of the regulations which may be encountered. With regard to the point made about the onus being on the offender to produce proof that the fine has been paid, this is already incorporated in the Road Traffic Act. It is the same as the provision in that Act dealing with parking tickets, clearway transgressions and other offences for which on-the-spot fines are now in operation.
One area in which there might be difficulty is in the case of a fee being posted but not received by the Garda. The Garda would initiate a prosecution in the event of an on-the-spot fine not being paid. They would have to check their records to see if it had been paid. In the event of it not having being received by the Garda it would be necessary for the defendant to produce some kind of proof of having paid.
The idea is to ease the burden on the courts. If a defendant has to appear in court it may impose a cost in terms of loss of time which would be out of all proportion to the offence. I do not anticipate any difficulties for owners or drivers who may have transgressed as far as fines are concerned. We are not dealing here with serious breaches of the law because on-the-spot fines do not apply to offences of a serious nature.
I agree with on-the-spot fines. It does away with delay in litigation. Is there a standard or maximum rate of fine under the European Communities Act, 1972? Drivers are sometimes not in a position to pay such fines when they are abroad because most of them carry very little cash, and for good reason. They sleep in the cab of the truck and arrangements are made for them to refuel at various stations. Hauliers claim things are made difficult for them on the Continent in regard to fines.
The reason the European Communities Act is mentioned is because the various regulations under which on-the-spot fines can be applied under it — for example the tachograph — feature there. The Minister can extract some offences and say that on-the-spot fines should be imposed for them. What we are talking about are fines of the nature of £20. Relatively minor breaches of the law would be involved.
On the question of onus being on the defendant to show that payment was made, if the case goes to court and the defendant cannot show he has paid a cheque he may find at a later stage that he has a problem regarding "good repute". The banks do not issue returned cheques any longer and a person may find that when he tries to prove he has paid he has no evidence to that effect.
I know the Deputy is familiar with this area. One isolated offence does not affect "good repute". If a person has paid the record should be adjusted in time before any difficulties can arise about a licence.
In his reference to my alluding to problems that have been encountered by drivers in Britain the Minister indicated that on-the-spot fines relate to a more serious category of offences. The implication was that the case referred to at the annual general meeting of the Irish Road Hauliers Association was somewhat of a more serious nature. I understand — perhaps this is covered by the Minister's definition of a serious offence — the offence concerned was one of overloading. Sometimes a driver is not aware that a truck is overloaded. He would not condone overloading but he is an employee and at the mercy of someone who may expose him to the danger of being overloaded.
In Britain the fines differ in many respects to our on-the-spot fines. A Magistrates Court can be set up quickly. It goes through a court procedure. The case will be dealt with almost immediately. The Deputy will be aware that there was a committee of judges who examined the question of on-the-spot fines and their advice was they should only be used for offences of a minor nature.
One of the major benefits of such fines would be that they would stop cluttering the courts with minor offences. There is a difficulty in that there could be conflict as to whether a fine was paid but that is something which could be sorted out. If such a dispute arose, the court would be involved, because it would arrive in court in the first place. There will not be major difficulties. There may be a difficulty with the post, but the Garda are unlikely to initiate proceedings immediately after the 21 days has elapsed.
If proceedings were initiated immediately, because of the nature of these proceedings, it would be a long time before the case would come up in court and the difficulty caused by late posting would be irrelevant at that stage. The same applies to difficulties with cheques. The usual common sense would be applied in regard to payments or cheques that arrive one or two days late or even as much as seven days late. The Garda are not known to be overly severe in these matters and I am sure the same will apply in this case. It is not possible to copperfasten all of these things in the legislation but I think it will work out to the benefit of everyone.
I agree with the general conclusions of the committee which considered on-the-spot fines. It is desirable that they should operate in regard to less serious offences.
I would like to reiterate that the Department of Communications should be au fait with what on-the-spot fining involves in other countries where it obtains and such information should be available to our citizens who are involved in the haulage business. I say that in the context of this section of the Bill because it would be only human to deduce that on-the-spot fines would be operated in much the same spirit in other countries as obtains in Ireland. This may not be the case and it may have caused some of the incidents that I have already referred to. A haulier could find himself in a position where he may be in a part of a country he does not know, unable to contact a legal adviser quickly and drawing the wrong conclusions based on the legislation we are putting on the Statute Book here and now.
I understand that some of the professional associations are at the moment, through contacts with similar associations in other countries, drawing up points of reference whereby contact can be made with legal people and advice sought, apart from our diplomatic and consular representation in other countries. I take the Minister's point that in dealing with such things the Garda, generally speaking, exercise their common sense and are not court greedy and are helpful in that regard. In general I approve of the section. I favour the provision that cuts out court costs for the unfortunate person who is caught contravening regulations which, although they are important in the general context of the Bill, are not very serious offences but simply attract a fine of about £20.
I agree with Deputy Wilson that our drivers going abroad should have an easy reference to all the regulations that exist and the possibility of fines in the countries to which they are going. Some arrangements should be made in that respect. I got some of the documentation on the British situation in regard to on-the-spot fines and there seems to be a two-tier system there whereby for the actual on-the-spot fines there are fines for endorsable offences of about £20 and for non-endorsable offences of about £12. There seems to be another type of case in which they are referred to the Magistrate's Court quite quickly on the same day; that goes through the ordinary court proceedings and it deals with other activities. So the on-the-spot fines there are dealing also with relatively minor offences.
In regard to the point Deputy Ahern mentioned, is there any danger of a build up of on-the-spot fines affecting "good repute"?
That is perhaps a bonus. The on-the-spot fines will not be recorded.
Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
This section provides for increases in the penalties for various offences in the Road Transport Acts. The new section increases the maximum fine on summary conviction to £1,000 and provides for a maximum fine not exceeding £5,000 on conviction on indictment. The fine of £1,000 is the maximum which the District Court can, at present, impose.
Section 14 is very long and will need a bit of teasing out. Again, the question of consolidation raises its head at the very beginning of the section. What we are talking about is something in substitution for section 9 (2) (a) in the Principal Act inserted by section 2 of the Act of 1978. As the Minister has mentioned, every person who carries merchandise in contravention of this section shall be guilty of an offence under this section and shall be liable on summary conviction to a fine not exceeding £1,000 or on conviction on indictment, not exceeding £5,000. These are very substantial fines. I would like a little more from the Minister in regard to what, in his mind, justifies fines of £1,000 or £5,000 respectively.
I should like a little more information on this, to indicate what, in the Minister's mind, justifies the £1,000 and £5,000 fines, respectively. The people involved in the haulage business are very keen on enforcement of the provisions of whatever legislation is on the Statute Book. There is a grey area in transport at the moment, where people pay VAT and taxes and so on but have made complaints to me that they may be outside the law in some ways and that we as legislators are to blame in that we have done nothing to update the law substantially to cope with and cater for the very much changed times from when the laws were enacted originally in the thirties. I would very much appreciate if the Minister would flesh out the argument in justification of the large rise in the fines as indicated in section 14 (1).
As the Deputy rightly points out, the key section here is section 14 (1). This provides, where a person engages in the carriage of merchandise for reward without a licence, in other words illegal haulage, for the maximum fines laid down in this legislation. In the 1978 Act the maximum fines were £250 for a first offence and £500 for the second or subsequent offences. As the value of money has moved since 1978, although that is not so long ago, the leeway has been taken up between the £500 and the £1,000 fine. What we are doing here is setting down the maximum fine. These will not necessarily be the penalties imposed by the court. Naturally, the court will take into consideration the various circumstances, arguments and pleas put forward for amelioration in the case of a person who is found guilty before the court. As Deputy Wilson no doubt is aware, there have been very strong representations from many people for an increase in the fines, considering the type of operation which haulage has now become, the kind of loads that carriers bring and the revenue that it is possible to earn. Fines of £250 for the first offence and £500 for the second and subsequent offences were considered too low, in these representations. I understand that these were quite low fines as far as many of the hauliers were concerned and could be paid without any difficulty.
The present maximum fines of £1,000 and £5,000, respectively, constitute a deterrent. Of course, a fine of £1,000 is the maximum which can be imposed in the District Court. These fines are quite substantial and are intended to be. Now that we have liberalised transport, everybody would be anxious, under the new regime, that the law be enforced and that there should not be constant breaches of it. The purpose of the legislation was to get rid of the chaos, or the grey area as Deputy Wilson described it delicately. The Deputy and all others who have been seeking proper facilities for ensuring that the law is enforced will agree with that. They will be a very substantial aid in ensuring that the law is kept. The previous fines, if re-enacted in this legislation would not be a major deterrent.
Very briefly, I agree with the Minister that the purpose is to remove the grey area to which I referred. There are good, solid arguments in criticism of us as legislators for having allowed the legislation on the Statute Book to slip out of kilter with the developments up to 1986. One of the good things about the effects of this Bill must be that that area will be removed and that people who are anxious to make a living for themselves and to contribute at the same time to the economic development of the country will have an opportunity to become fully licensed and effective operators of transport in the community.
Question put and agreed to.
NEW SECTION.
Amendment No. 5 which involves a new section is in the name of the Minister. To that amendment, amendment No. 1 has been put down by Deputy Wilson.
I move amendment No. 5:
In page 11, before section 15, to insert the following new section:
15.—(1) The Minister may appoint any of his officers to be transport officers for the purposes of section 16 of this Act and may revoke any such appointment.
(2) Every transport officer shall be furnished with a warrant of his appointment as a transport officer and, when exercising any power conferred by section 16 of this Act, shall, if requested by any person affected, produce the warrant to that person.".
The purpose of the amendment is to include provision in the Bill for the enforcement of the laws relating to transport of goods by road and passenger bus. It provides for the appointment of transport officers in my Department for the purpose of carrying out inspections in relation to road transport operations.
I move amendment No. 1 to amendment No. 5:
After subsection (2), to insert the following:
"(3) There shall be established six regional squads of transport officers for a 24 hour per day, seven days per week operation.".
My amendment to the Minister's amendment No. 5 seeks to make enforcement effective. I do not know if the full effect of enforcement could date from before the two year period lapses or after, but one of the important points made by those involved in the haulage business is that enforcement is essential, to the extent that one association in that business indicated that they were willing, if necessary, to form a fund to pay for officers.
I do not think I need to go into any further detail with regard to the amendment. The idea behind the regionality is so that the operations would not take place in a certain part of the country to the neglect of other parts. That is the thinking behind the six regional squads. The seven day a week, 24 hour a day operation is also essential.
I have considered Deputy Wilson's amendment. The establishment of regional squads of transport officers as proposed in this amendment implies the establishment of regional, administrative and supervisory units. I am not convinced that such an arrangement would be cost effective. Unlike other Departments, such as the Department of Social Welfare and the Department of Agriculture, the Department of Communications does not have a regional presence. It has been necessary to organise premises for the transport officers involved. There is need to provide support staff on a regional basis. This would involve increased costs. There will be full-time transport officers employed. It will not be a question of designating someone who is working in the Department of Communications. From a purely operational aspect it would be desirable that transport officers should have a nationwide rather than a regional remit. Experience in the enforcing of the tachograph regulations shows that it is often necessary to follow up the inspections at checkpoints by more detailed checks on the operator's premises. These could be located in an area very far removed from the checkpoint location. Follow-up action would best be undertaken by an officer who undertook the checkpoint inspection. I can understand Deputy Wilson's concern that the enforcement measure should be applied throughout the State. I can assure him that that is the intention.
While the deployment strategy has not been completely devised, it is important that we should have maximum flexibility. As Deputies will appreciate, it might be very productive to concentrate the entire force in a particular area for a limited period so that a blitz type of operation would be carried out. It might become known that a substantial number of offences were taking place in that area. It might be the most effective way to avoid evasion of checks if they were being carried out by a single officer in the area. If, as suggested by Deputy Wilson, a regional policy turned out to be the best and the most effective way of doing this, we have no hang-up about a regional system. I am giving the various arguments whereby we would not be inclined to support this measure at present. We are trying to make this as cost effective as possible and to have the best detection organisation. It is valuable to have all of these operations on a nationwide basis. They can be transferred from one area to another. There are substantial costs involved, not only for regional offices but also in making the operation nationwide.
On the question of a seven day a week, 24 hour a day operation, I do not think this would be possible with the resources available. As well as the regional concept, this whole area would be an organisational matter. It would not be necessary to put them in the Bill. If this is found to be desirable and to be the most efficient way of doing it as regards the working hours and the disposition of the officers who will be carrying out the work, there is nothing to stop it from being done in an organisational manner. We will endeavour to have enforcement as extensive as possible. I am ruling out operations outside the normal hours, subject to financial and personnel constraints. It would quickly become known if the operation did not take place or if it took place within strict time limitations. In that way the desire to get everybody within the law would be frustrated to a limited extent. We will learn from experience, and working arrangements will be kept under review in consultation with the Garda to ensure that the new measures are as effective as possible.
The proposed amendment has a number of desirable traits. I am a great advocate of decentralisation and of moving as many of the activities as we can into provincial areas. In this case it could militate against effective operation. Therefore I appeal to the Deputy to withdraw the amendment. One thing in the Deputy's amendment which appealed to me very much was the absolute necessity for the occasional blitz operation in the early stages to ensure that any area where there might be constant and regular transgressions of the new legislation would be thoroughly checked out. The effect of a blitz operation would ensure that people in other areas might be afraid of a similar comb out. While they might be able to circumvent the tic-tac operation or the passing along of one type of operation or another and while they might be able to circumvent a single person seeking to enforce the law, it would be very much more difficult for them to evade the presence of the entire force of transport officers in any one area.
I accept the thinking behind the idea of the 24 hour a day, seven day a week operation. Work will have to take place outside the normal working hours. Nobody can accept it as a nine to five operation. The enforcement of the law, whether through the activities of a transport officer in conjunction with the Garda or by the Garda themselves, cannot be on the basis of office hours. Unfortunately, people who wish to break the law do not operate within office hours. Therefore, the officials who are trying to counteract that must be available outside those hours. Generally speaking if it is found that the contents of amendments put forward by Deputies are desirable, they can be incorporated without being included in the Bill.
Progress reported; Committee to sit again.