Public Business. - Road Transport Bill, 1933—Committee Stage.
Section 1 agreed to.
the expression "shipping company" means a person carrying on a regular steamer service to or from a port in Saorstát Eireann;
the expression "existing carrier" means a person, other than an authorised (merchandise carrying) company, who carried on at some time between the 1st day of July, 1932, and the 8th day of February, 1933, a merchandise road transport business and includes a successor in title to such person in such business;
I move amendment 1:—
Section 2. To delete in lines 14-15, page 4, the words "at some time."
This amendment and the subsequent amendment seek to give effect to the same idea. The amendments are calculated to ensure that an existing carrier, within the meaning of the Act, shall not be merely a person who, for the space of a few days or a week, within the period specified in the section, carried on a road transport business and is, therefore, entitled to a licence under the Act. The position, briefly, is that an existing carrier must be supplied with a licence. He must get a licence, and, having got the licence, he is allowed to act as a person carrying on a road transport business in whatever area or areas he has selected. If he is compulsorily acquired, he must get compensation, and, failing agreement on the question of compensation, he has the right to go to an arbitrator set up under the Act and he is further protected by the fact that, whether he wins or loses, for practical purposes he is allowed his costs. Furthermore, if he finds that things are not going very well with him, if his business is not paying and if competition is a bit too keen, he has the right to apply to the Minister to have his business transferred to another merchandise company and he must get compensation for it. Again, failing agreement, he has the right to go to the arbitrator. A person upon whom these statutory privileges are conferred should have some show of previous stability or some show of real interest in road transport before the introduction of this Bill.
The section as worded lays it down that:—
"existing carrier" means a person, other than an authorised (merchandise carrying) company, who carried on at some time between the 1st day of July, 1932, and the 8th day of February, 1933, a merchandise road transport business and includes a successor in title to such person in such business.
It merely lays it down "at some time" and, later on, in Section 10, (2), (b), it leaves it to the carrier himself to select any specified date between 1st July, 1932 and 8th February, 1933, on which to base his claim. The existing carrier or the man who would establish himself as such can, therefore, select any date within the seven months specified in the section, and if he can show that on that particular date he had a particular number of lorries working for him and carrying goods for reward, the Minister, as the Bill now stands, has, I contend, no option but to grant him a licence for the full number of lorries working on that particular date. If he refuses, the man has I believe, the right to appeal to the courts, and when he does appeal to the courts, statements made by the Minister here or in the other House as to what the section was really meant to convey will avail nothing. His statements simply will not be allowed to be quoted so we have to go on the actual wording of the Bill and the courts will have to interpret it accordingly.
The amendment, therefore provides that the words "at some time" should be deleted and, the House will see, the subsequent amendment provides that, in order to be recognised as an existing carrier, he shall have conducted the business with "reasonable regularity" during that seven months period. The word "reasonable", if I may say so without perpetrating a pun, is a reasonable word and is one used in Acts of Parliament and, in fact, it finds its way into one of these Bills in two or three places. The Minister is, I think, over anxious in his desire to see that anybody who had anything to do with transport prior to this Bill shall not lose even in a very small way but shall be compensated. He has changed his outlook very considerably in that respect as compared with the views he held some short time ago. I should like to quote again what he said in the Dáil on a previous occasion, when discussing the transport question. He said:—
"The railways have fixed assets. They have lines and stations, etc., whereas the omnibus companies own only omnibuses."
Of course, that would apply also to lorries.
"These have a limited life, and I believe that very little hardship would be imposed on anybody if it were enacted that, after a particular date, let it be one year or 18 months ahead, the sole rights of running public services on the road would be vested in that transport board the establishment of which we suggest."
We are not asking that anybody who is in business for 12 or 18 months should be ousted without compensation or who is in the business even for a reasonable period during the seven months stipulated in the Bill should be deprived of compensation, but I do suggest that it is leaving the Bill altogether too wide to make it possible for a carrier to come along and establish his case although he might have only one, two or three weeks' transport experience prior to the introduction of the Bill. As I pointed out on the Second Reading debate, the employee who loses his employment as a result of one of these concerns being purchased, either on the application of another company or on the application of his own employer, must have five years' continuous service with his present employer before he can claim compensation at all. One wants to protect a vested interest but, surely, the vested interest of a man's employment, the means of livelihood for himself and his dependants, is just as valuable and as great a concern to him as is the price a man will pay for a lorry or two. Yet he is to be wiped aside, so far as this Bill is concerned, if he has four years and 11 months' continuous service. He must have five years' continuous service but the man who owns a lorry is not asked to have even seven months' continuous service in the interests of transport or even seven weeks of such service.
The Bill is already full of difficulties and obstacles of one kind or another that have to be surmounted so that order may be restored and so that, in place of small huckstering concerns, a reasonable number of well established, financially sound and efficient firms may take their place; but the provision contained in this section regarding the definition of an existing carrier is one of the most indefensible obstacles that has been introduced into it. The Minister, I take it, will, in the first instance, have to interpret the claim. He will have to adjudicate on the claim of a man as to whether he is an existing carrier or not, and I suggest that the wording I propose will not in the least hamper him. It will give him a certain amount of discretion that he does not seem to have in the Bill as it now stands, and, in the event of an appeal from a decision of his, the courts will have something to go upon other than what is provided in the section.
I am opposing this amendment. Senator O'Farrell, who is very careful, has, for once, missed the real reason why this definition is framed as it is. Otherwise he would not have used such strong language as to say that the definition in the section is indefensible. I submit that not only is it defensible, but is very reasonable, and that in contrast to the amendments suggested by the Senator, it is excellent. I wonder whether the Senator has considered at all the case of seasonal trade. There are carriers who do a seasonal trade, and there are towns, even in this small Free State, in which a seasonal trade is done. In my limited experience I know carriers who come within the definition of existing carriers in the Bill. These are persons, other than the various merchandise carrying companies, who carried on some time between the 1st of July, 1932 and the 8th February, 1933, a merchandise road transport business. I know carriers who make a livelihood, and who come within such a definition, who yet would be excluded by the amendment. Take the case of watering places where there would be a good deal of trade during certain months of the year, but no trade at all in the winter months. A carrier who caters for a district of that kind—and there are many of them in the west of Ireland— would be absolutely excluded by the amendments. A man who does business in some of these towns in the south and west will be able to prove that he carried on business some time between the 1st July, 1932 and the 8th February, 1933, a merchandise road transport business, because he did so during the summer months, but he would not be able to prove that in the interval, between the 1st July, 1932 and the 8th February, 1933 he did so with reasonable regularity, because some of his lorries might be in the garage during the winter months. He would not be able to satisfy the requirements of the amendment, whereas he will be able to satisfy the requirements of the Minister, and I am very glad to see that the Minister is so attentive to the vested rights of these small people. I do not think there is any good in referring to them as hucksters. I would rather deal with hucksters, and have a lot of people working in a small way, than have what are called these flash companies that the Senator seems to prefer.
Would that apply to the legal profession?
I would apply it to the legal profession also. Why should not every man have a chance of making a living?
It seems to me that the amendment is a good one, and that the words "with reasonable regularity" within the time mentioned would still give the Minister power to define what "reasonable regularity" means, and would enable him to meet a case such as Senator Comyn described. The purport of the amendment is to define better than it has been done what carriers should be. Unless they carry on business with reasonable regularity I do not think they should be defined as "carriers".
A number of carriers are engaged at a certain period of the year carrying beet. Would the amendment rule them out? Would it be considered "reasonable regularity" if they carried beet for one month?
That is the point. Otherwise I think the amendment is a good one.
I found a good deal of difficulty with regard to this matter. It seems to me that what we are trying to arrive at is some method by which there shall be fair play, and that people will not be allowed to come in and claim compensation under the Bill unless they have been bona fide carriers. As the object of the amendment is to ensure that I think we all agree with it. A question arises, however, with regard to the wording. I am inclined to think that by taking out the words “at some time” it will be made essential that people must be carrying on business for the whole of the year. I think the insertion of the words “with reasonable regularity” as well as leaving in the words “at some time” would strengthen the section, because that would mean that people were not carrying on for two or three days, but were doing so “with reasonable regularity.” Then anyone with a bona fide business within the period specified could prove that they carried on “with reasonable regularity.” Otherwise there might be injustice.
Having received a flood of resolutions and a host of deputations from persons interested in the merchandise carrying business, it is rather refreshing to be accused of being unduly concerned to see that no road merchandise transport operator is going to lose. The people who operate these road transport services have a rather different idea, and they expressed it with considerable force. I am not anxious to secure that nobody who was in any way connected with road transport will lose as a consequence of the passage of the Bill, but I am particularly concerned to see that everyone who was connected with the road transport business during the qualifying period, or portion of the period, will have a degree of protection, and will be secured the right to a licence and, if he can make a good case, a right to be acquired and compensated. Senators would want to have considerable regard to the possibility of injustice being done if the amendment is carried, and if the section is amended, as suggested. I am personally of opinion that acceptance of the amendment would rule out entirely persons engaged in the seasonal trade of carrying beet. We had this matter discussed at considerable length in the other House, and there were suggestions there that the period should be extended to cover a full calendar year, so that no one engaged in seasonal trade could possibly be excluded from the scope of the Bill. I was willing to accept an amendment to that effect if it were shown that there was, in fact, any other seasonal trade not covered by the Bill, or that did not take place within the period specified.
The obvious example is the beet trade. There are people engaged carrying beet by road for reward during the beet season who do not engage in that business at other times, but who are occupied either in beet production or who earn a living in some other way, except at that particular period. It is intended that these people should be entitled to a licence to carry on that business in the future, and if circumstances should arise which would seem to justify the acquisition of their business by the railway company, they can then be compensated for whatever loss they sustain. I am interpreting the word "business" to mean what is commonly accepted. The intention is that any person who is carrying on a road transport business should be entitled to a licence and be subject to the terms of the Bill. It is rather difficult to make regulations which will apply to the business of carrying merchandise by road in a manner that will avoid injustice, particularly having regard to the fact that most of our minds are inclined to run on the lines set down in the Road Transport Act of 1932.
I will give what probably will be regarded as an extreme case, but one which, nevertheless, must be borne in mind. It is the case of a person carrying on this business, in the sense that he was holding himself out as being ready to carry merchandise for reward, if it was offered to him. having the necessary equipment for the purpose, but who did not, in fact, get business to do during the whole of the critical period. Such a person could not be said to be carrying on that business "with reasonable regularity," assuming that the Senator implies by these words what I take them to mean. I am not at all sure what the words signify or what would be the interpretation put upon them in a court of law. In my view they are not at all appropriate to the section. We might delete the words "at some time", and require that the business be carried on during the whole period, from July, 1932 to February, 1933, but I think that would be a cause of injustice to people carrying on a bona fide business over part of that period, or a bona fide seasonal business.
What I think the Senator is anxious to secure is that nobody carrying an occasional load can come forward and claim a licence as having been engaged in the business. The use of the term "business" precludes any such person being entitled to a licence. What is intended as the section stands —and it was carefully considered and reconsidered by those responsible for the drafting of it—is to ensure that there is no loophole, and no possibility of being obliged to give a licence to anyone who may— perhaps on one occasion—merely set himself out to carry a load of goods for someone for pay. I am assuming that that is not the interpretation that could be placed on it. The interpretation of "road transport business" implies that a bona fide business must be carried on, and that a person must not merely carry goods for reward with regularity, but that he continuously holds himself out as being available to do so. If the section goes through in the form in which it appears in the Bill, I think we will have eliminated a possibility of injustice being done. Possibly we may bring subject to the Bill, and be required to give a licence to some one of whom it may be said that his road business was doubtful. That possibility is there, but I would sooner err in that direction than err in the other direction. It is a serious thing to take away from anyone a means of livelihood by an Act of Parliament, and we may easily do that if we entirely tighten up this section. We may give a licence to some one whose road transport business is of doubtful dimensions, but we can risk that if we assume that no one genuinely engaged in the business, even seasonally, is turned down, whose means of livelihood it is, or a substantial portion of it, and who would be deprived of the right to compensation. That is what we intend.
It is wrong to assume that everyone who gets a licence will get compensation. That certainly will not be the case. Everyone engaged in the business of carrying goods by road will become entitled to a licence, and that business will continue in the future, as in the past, except circumstances should arise to justify the Minister to make an Order for compulsory transfer to the railway company. Those circumstances will not arise for everyone, and probably the number of cases in which orders for compulsory transfers will be made will be very few indeed. It certainly is my intention to limit them to the smallest number possible, because I think we should contemplate the development of the position we desire to achieve by a process of agreed purchase. I think that is what experience will show to be the case.
I should like Senators also to bear in mind the other provisions of the Act in reference to this section. In order to get a licence that would be of any value to him, the applicant must have lorries to use in connection with that business, and he will only get that licence in respect of lorries which were used to carry on the business for the whole or part of the qualifying period. He has to state the number of lorries or tractors that were "in use or available for the purpose of such merchandise road transport business." That, in itself, is a safeguard against those who do not carry on a genuine business at all. I think that we would err in the wrong direction by amending the section in the way Senator O'Farrell suggests. I think that in doing so we would be depriving such people of a licence which, in equity, they should have.
Arising out of what the Minister has said, I should like to know what is in the licence that we are talking about. If the licence which is going to be issued to the individual gives him leave to carry on the business, and if he satisfies the Minister that he was carrying on that business during the specified period, then I do not see any great risk. Senator O'Farrell's amendment would seem to imply that he thinks that licences would be got out for merely temporary work and that to give the person a licence to do such things would be giving him a much freer hand than the amount of his business would justify. If it gave him a licence to do what he was in the habit of doing, then, I think, Senator Comyn's objection would be met entirely. The licence would deal with what the Minister has been satisfied the man was in the habit of doing, and it would not mean giving him a very free licence for a very small amount of work. We do not know what sort of licence is going to be issued to this individual. Will it contain leave to do work which the man has already been in the habit of doing—in which case I do not see that any harm would be done—or will it be a free licence to go ahead into a much larger style of business?
The licence will be limited only in the manner in which the applicant for the licence desires to have it limited. A person might, in fact, only have been engaged in the transport of a particular class of goods, such as beet, for instance; but in the licence he can apply for permission to carry any class of goods which he specifies. The particular limitation that must be borne in mind, however, is that the extent of the business cannot be increased. He can only carry on with the same equipment, in lorries or tractors, as he was, in fact, using during the qualifying period.
Senator Comyn's whole contention was that the man might only have been doing a seasonal business and that his whole business had been coupled up with a business in which he did a carrying business for just one particular season of the year. If his licence were only to give him permission to do what he had been in the habit of doing, it would be no harm to anybody; but if it gave him the right to apply for a general carrying licence for the whole year, which he had never done before in his life, then I think he would be getting something for nothing.
Up to the present there was nothing to prevent such a man carrying anything he liked. A person carrying beet at the appropriate period of the year and who refused to carry anything else did it voluntarily, and it is reasonable to assume that a person who wished hitherto to confine himself to that would want to confine himself to it for the future also and, therefore, he would apply for a limited licence—that is to say, limited to the carrying of beet. If he widens the licence, for the purpose of carrying other classes of goods, then he must carry the other classes of goods also. One of the conditions is that he must carry them if they are offered by anybody. I think it is reasonable to assume that a person who carries beet at the appropriate season of the year will only apply for a licence to carry that. I take it that the same considerations will apply in the future as in the past.
In the light of what the Minister said as to the way in which he proposes to proceed under this Act, if unamended, there will not be very much difference between his intentions and those of the mover of the amendment. I still think, however, that the amendment is an improvement. I think that the words "with reasonable regularity" are better than the words "at some time," which is such a very slight qualification. In a sense, a man applying for a licence, who really did not do a genuine business, would be under a grievance if the section is left as it stands, whereas the words "with reasonable regularity" would be a fairly elastic term. I suggest to the Minister that if the person concerned did not carry on the business with reasonable regularity he could hardly be in need of a licence. It might be possible to bring up an amendment on the Report Stage which would be something between the two.
I wish to support the amendment. I cannot see what hardship would be imposed at all. Senator Comyn states that hardship might be inflicted on one type of carrier, that is, the carrier who caters for seasonal traffic. Senator Comyn, and the Minister also, adverted to only one type of carrier, that is the carrier of beet.
No, I did not speak of beet. I said "seasonal carrying," and had not in mind any particular class of goods.
Well, seasonal carrying. I should like to know is there such a thing as a seasonal carrier in the country. Take beet, for instance; would it be possible for any carrier to exist on a purely seasonal traffic, such as beet, and maintain his service—his lorries and so on?
It is quite common for carriers to indulge in seasonal carrying in connection with the summer business at seaside resorts and other such places.
I maintain that it would be utterly impossible for any carrier to maintain such a service for a purely seasonal traffic, such as seaside resorts in the summer months, and make ends meet. The same applies to the seasonal carrying of beet, just as to seaside resorts. No man could maintain such a service as that and exist on that alone. I think that no hardship would really be done to any section of carriers in this country if this amendment were carried. I think it is a reasonable amendment. Even if you had an isolated case of one or two carriers in, say, the beet traffic, who were maintaining a service for the beet producers, and they were to be prohibited from carrying on that business, no great hardship would be inflicted while you had the railways or other such services there. Whereas, following what Senator O'Farrell says, it leaves a loophole if the Bill stands as it is at present and advantage might be taken of that. I do not think any hardship would be imposed on any type of carrier and I support the amendment accordingly.
I should like to put Senator O'Hanlon right on one point. It is not suggested that there are people who engage in the carrying of beet or in the carrying of some other commodity during part of the year and who live on that all the year round, but it is conceivable that people who use lorries in connection with their own business and who only do public carrying during the beet season, or the carrying of fish during the fishing season in certain maritime counties—it is quite conceivable, and, in fact, I think it is the practice, that somebody would have a lorry, who uses that lorry in connection with the grocery or other type of business which he ordinarily follows, and merely turns the lorry into use for the transport of beet or fish, as the case may be, during the particular months when these commodities were available. That man did not seek or want other carrying business at other times of the year. Such a man would be debarred from getting a licence under this section if it were amended in the way Senator O'Farrell suggests, because he would not have carried on during the whole period specified, with reasonable regularity, a merchandise carrying business. I could not give an exhaustive list off-hand of such seasonal trades, but there is probably quite a number of them.
I do not know whether Senator Comyn's example is altogether appropriate, because persons who do a carrying business in seaport towns during the summer months are generally available at other times during the year for other businesses. But there are people who do a business like the beet-carrying business in districts where there are such seasonal trades. The only other example I should like to give would be the fishing trade, where there might be a necessity during a particular season of the year to provide lorries for the transportation of these goods for a limited period. That would be only for a period of the year. If it were proposed to delete the words "at some time," I think the period in the Bill would be very considerably shortened. I am probably unduly impressed by my own experience of the operation of the Road Transport Act of 1932. That, as Senators will remember, fixed the period at a full year ending six months before the Act became law. Quite a number of persons had established themselves in the carrying business subsequent to the beginning of the qualifying period. They had established themselves, incurred liabilities, engaged staffs and so on, but did not become entitled to a licence because they had started subsequent to the beginning of the qualifying period. The period in this Bill is considerably shortened and ends on the date on which the Bill is introduced and its terms made public. Contemplate the possibility of some person who had set up a business, say, in August or September of last year. He did that before the legislation took place or before its terms could have been known or before any intimation of legislation of this kind arising had been given. Under this Bill, that man would be deprived not merely of the right to a licence but he would be debarred for ever from getting a licence. It was different under the Act of 1932 because we could give a licence at any time. We could deal with cases of hardship in that way. For instance, if we could not give a licence for one route we could suggest another route. Under this Bill we have no power to do that and we cannot give the person a licence if he does not ask for it at the time. It is much better, having determined on this policy, to deprive oneself of discretion and to make the fact clear to everyone. That is why I suggest that you create the possibility of injustice and hardship by tightening up the section whereas by leaving it as it is I do not think you make it possible for anyone to get a licence who is not genuinely entitled to it. In any case, I would sooner err in that direction than in the other.
The Minister in his explanation laid emphasis on the word "business"—road transport business. He said that was a safeguard and he gave illustrations. The illustrations seem to me to open a wide question, because the Minister said that if a man, even though he had done no business, set himself out to do public carrying work he would be entitled to a licence. I can visualise many cases. A man is in business. He is mainly in the coal trade. For the whole of the 52 weeks in the year he is engaged with his lorries in the distribution of coal, but, according to his billheads, he is not only a coal merchant but a furniture remover and a public carrier. Though he may not engage in the work of a furniture remover or a public carrier, he is open to do that work. That is part of his business. He is, in fact, a coal merchant and a coal distributor. That is not an exaggeration at all, because one sees cases of the kind every other day in Dublin and throughout the country: that is to say, that a man has a lorry for his own business and is open to do other business if it comes his way. He announces that fact on his billheads. According to the Minister's illustration that would be sufficient proof that it is an existing business of public carrying and, according to the argument, by that fact the man would be entitled to get a licence. Is that the intention?
It is intended that an applicant would prove that, in fact, he was engaged in the business.
Does that mean that he had actually carried any goods or held himself out to be in the business?
The extreme case, of course, would be where a person had set himself up in this business and had got no work to do. I do not think there is any such case likely to come forward.
I think the Minister will find scores of such cases in small areas.
While there is a possibility of a person mainly occupied in another business holding himself out to do road transport business, if offered, though not really seeking it, there is, as I have just pointed out, the extreme case of a person who had no other business setting himself up in this. That is the extreme case, and assuming that the applicant had not died of starvation, I think he would be entitled to a licence. He might have some difficulty in proving a right to it if he had, in fact, done no business—that he was, in fact, engaged in the business. If he could prove that he was in business, even though it was very unprofitable, he would be entitled to his licence.
Quite a large number of people in the country own lorries which they hire out. They hire out lorries for the purpose not only of conveying the sugar beet to the factory, but in many instances to the nearest railway station. Am I to understand it that, if the amendment is accepted, a man who owns a lorry for his own business and hires it out, say, for the purpose of taking a wagon of coal to a neighbour from the nearest town, may be debarred from getting a licence?
Such a person might be debarred in any case. One of the persons that we want to eliminate is the shopkeeper who has a lorry which he uses mainly for the distribution of his own goods and occasionally carries a load of something or other for his neighbour. Such a person, for instance, may have a load of his own goods going to Dublin. He may say to his neighbour: "If you want a ton of coal or a ton of flour I will bring it back to you from Dublin," and charge his neighbour a very low rate for doing so. If that is the type of person that Senator Miss Browne is referring to, then definitely he is one of the persons against whom the Bill is aimed. Such persons have done more to cut freights to fritters than any other class in the country. It is intended to cater for the type of person who regularly engages in seasonal trades, like beet carrying, but who does not do a regular carrying business over periods of the year, and to ensure that such a person will get a licence. My interpretation of the words which Senator O'Farrell proposes to delete and to insert is that they would debar such a person from getting a licence under the Bill as it stands. I think that is correct and I am not sure that Senator O'Farrell will agree with me. The same point, I think could be met by say, deleting the words "at some time," and by not inserting the words "reasonable regularity," and by reducing the period considerably. I doubt if that would be wise. I think the section as it stands is the best arrangement that could be made having regard to the complicated nature of the situation and to the defective nature of our knowledge as to the facilities and businesses that are being conducted through the country at the present time. We do not quite know the number of persons engaged in this business or what difficulties are likely to arise. That is why I would like to have a form of words fairly wide, including in their scope all these different classes, with sufficient elasticity to enable us to cater for possible classes that we cannot visualise. We may do them an injustice if we frame the Bill too rigidly.
The Minister, I think, finds it very difficult himself to say what the effect of the section as now drafted is going to be. In fact he has made two rather contradictory statements to-day. In reply to Senator Johnson he indicated that any man who ran a lorry in connection with his own business and who at some period of the year turns on to other business, carrying goods for reward, would be entitled to a licence under the Bill. Speaking on the Second Reading of this Bill on this day week the Minister said a number of people would not come under it. He also said:
"Neither does it include the person who had a lorry which he used mainly in connection with his own business but which, on very rare occasions, he used to convey goods for reward for somebody else."
That is a more definite statement than the Minister's statement to-day in reply to Senator Johnson. In fact it is rather contradictory of it. The Minister has now made another statement which rather modifies his first statement somewhat. What does he intend to mean by "existing carrier"? He has so far failed to state where he can, under the Bill, refuse to grant a licence to a man who comes along and says that for even one day during the period specified he has carried on a road transport business. If the Minister can find any section in the Bill that saves him in that respect I withdraw all that I have said. Under sub-section (2) of Section 10 it is provided that when the applicant for a merchandise licence is an existing carrier, his application shall state "(b) the number of mechanically propelled vehicles being lorries or tractors, and so classified in such application which, at any specified date (in this Act referred to as the critical date) between the 1st day of July, 1932, and the 8th day of February, 1933, selected by the applicant ...." He has only got to show the number of lorries or tractors that he had on any date between those seven months. I can find nothing in the Bill which will enable the Minister to insist on his showing what traffic he had over a given period or that will impose any condition other than those stated that would make it impossible for him to get a licence. It is not intended under this amendment to exclude a person who, as the Minister says, might have started business in August or September. If he started in August or September and carried with reasonable regularity for a fortnight, say, out of a month or for three weeks out of a month, that, I believe, would be interpreted as "reasonable regularity" and would not disqualify him at all.
What I am concerned about is the large number of people who will now come along and see a splendid opportunity of getting the railway companies, shipping companies and others to buy them over because of the new competition which they will start under this. Take for instance a case like this. A man carried beet for a month or for two months to Carlow each year and for the purpose he hired or managed to get together eight or ten lorries. Under this Bill he comes along to the Minister and assures him that at a particular date he was employing ten lorries to carry beet to Carlow. He now looks for a licence to carry goods not only around Carlow but to carry goods between Dublin and Carlow. He is competing with the railway company and with their transport concerns. He carries goods in both directions. He has no serious intention of carrying on that other business. People are not going to require him to carry goods although he is a common carrier, but what happens is that he will be there. As long as he is there he will be a menace to the genuine transport company which will have to buy him out, or he can ask the Minister to transfer his business over to their part of it. The Minister may do it but the company will have to do, so that you encourage people to enlarge the area of their activities at a time when we are trying to eliminate unremunerative competition so that they may compel other people to buy them out.
There is every encouragement for that happening under the Bill. The Minister has admitted too that a man holding himself out as being in the transport business can get a licence although in fact he has never transacted any transport business at all. Is not that leaving the door wide open and is it not going to be a fearful imposition on those who will have to purchase these people out afterwards so that there may be something like order in the industry? It is, in fact, conferring a new value on undertakings by a special Act of the Oireachtas. The term "reasonable regularity" is, I think, to be found in several other Acts.
In the case of the Railways Bill a man, for instance, getting compensation can apply to the company to commute for a lump sum a quarter of the compensation, and the railway company shall not unreasonably refuse. The arbitrator has to interpret the word "unreasonably" there. In another case a man, instead of getting compensation may be transferred to the transport section of the business, and he shall not reasonably refuse the transfer. Again, the arbitrator is left to interpret that. If the Minister can show that what he has laid down in his speech as being his intention can be carried out within the Bill as now drafted I will be satisfied. He has not done so. All we get from him is that he believes that is the case. He has failed to meet my challenge that he must grant a licence when a man has done only a few days' business. If he would agree to consider this between now and the Report Stage, I do not want to divide the House in regard to it, but I think the consensus of opinion has been that the Bill is too loose altogether as it is and leaves considerable room for exploitation and for absurd claims being advanced and because of that tends to increase what would be absolutely artificial competition instead of reducing it. If the words "at some time" are left in together with "reasonable regularity" it might create a certain amount of confusion of ideas because you might say that he carried on with reasonable regularity for one week or one day. Unless the Minister can give a better assurance as to what is the meaning of the section than he has given, I would feel disposed to put the matter to a vote.
I hope the Minister will look into this matter before the Report Stage. I have listened carefully to this discussion and I have tried to understand carefully what this means and I am still of opinion that the Senator's amendment would mean that a person must be for the whole time and all the time engaged in the business. I have a great deal of sympathy with the point of view expressed by Senator O'Farrell, but I do not think the amendment as it stands will meet the case. Senator O'Farrell argued about a certain case that might arise in Carlow, but he did not point out how that would not come under the section. It might come under it with or without the amendment if the time was sufficiently long.
I admit it could come under the section even with my amendment, but he would have to have a better claim than under the section as it now stands. As the section stands, it would apply to a man who has only a week's experience in the business.
Does the Senator wish to put the matter to a Vote?
Would the Minister consider it?
I shall explain my difficulty. I might be disposed to agree to delete the words "at some time," but not to the insertion of the words "with reasonable regularity," because I would like to be quite clear what interpretation would be placed on these words in a court of law. If we take out the words "at some time," I think the period is too long. A person would not become entitled to a licence in that event unless he had been carrying on the business for the whole of the period. I think we should safeguard the beet grower, taking him as an example. I think he should be entitled to a licence. I visualise a person who has a lorry which he uses in connection with some other business for the greater part of the year and who for five or six weeks in the beet season devotes the lorry wholly or entirely to a carrying of beet for reward. I want to see that person safeguarded to the extent that he will be able to carry on that business in the future if he so desires.
Can you confine him to that?
No, but he has confined himself to that up to the present, when there were no restrictions whatever, and when he could have gone into any carrying business he liked.
If he is free to carry on a wider business, his business is more profitable and it places him in the market for compensation.
He can ask to have himself purchased.
There is no certainty of that either because if he gets a licence for a wider business, he has got to accept all the obligations of the Act. obligations imposed by Sections 14 and 15, obligations for carrying any goods that are offered. If he fails to do that he loses his licence entirely and he cannot compete in any transport business. I think it is most unlikely that a person who is engaged in carrying beet and did not carry anything else when he was free to do so, and when there were no restrictions, will attempt to do so now when he would be taking on very definite obligations by the extension of his business. I think the section might be amended, but I am stating these difficulties so that Senators will understand the position. We might delete the words "at some time," but we have got to safeguard the position of the seasonal carrier plus the position of the person who started business six months ago, but subsequent to July of last year, and who is bona fide engaged in the business. I think he should be safeguarded. It may be that we will get some form of words that will do that, but I do not think that the form of words now proposed are capable of improvement.
Might I suggest that the Senator should have a conversation with the Minister between now and Report Stage and ascertain if he could not agree on some form of words?
I agree to that, but I cannot see much hope.
Amendment, by leave, withdrawn.
Would the Minister tell us now or would he be able to tell us on Report Stage is there any possibility of a business for one or two days being regarded as a business under the Bill?
I have had that point definitely examined and I am assured that there is not. I have had the point examined fully and I am assured that we can refuse a licence to a person unless he was bona fide engaged in the business.
Amendment 2 not moved.
Section 2. Before the word "a" in line 16, page 4, to insert the words and figures "with mechanically propelled vehicles duly licensed in Saorstát Eireann under Section 13 of the Finance Act, 1930, as amended by subsequent enactments."
The words proposed are intended to limit, in a manner not proposed in the Bill, the extent to which an existing carrier can get a licence to carry on a business. The difficulty we were up against was that a carrier, the headquarters of whose business was in Northern Ireland, who was equipped with a fleet of lorries and tractors which he utilised in connection with that business in Northern Ireland, could claim that the fleet was available to do road merchandise carrying in the Saorstát, that he had the whole of his fleet available for such road business in the Saorstát, even though in fact he never did any business in the Saorstát or that he did business only on rare occasions and did not use more than one lorry or tractor in connection with any such business. We think it would be most inequitable that a carrier of that description could come in and, as of right, get a licence to carry on a road merchandise business here with the whole of his fleet even though the bulk of his business always has been outside the boundaries of the State.
The amendment proposes to limit the number of lorries to those that were licensed in the Saorstát. It may be that that will operate unduly favourably in one case and unduly unfavourably in another, but it was the most suitable arrangement we could devise in order to prevent the inequitable situation that we saw arising. That situation would raise difficulties for some of the railway companies that might desire to acquire control of the entire business of carrying goods in their area. The cost of its acquisition might be unduly and unreasonably increased if the other situation such as was possible under the Bill as introduced were allowed to continue. I do not think it will be held to be unreasonable if we put in this limitation, which requires that the lorries engaged in the service, and which will determine the extent of the licence, should have been lorries registered in the Saorstát.
Amendment put and agreed to.
Section 2, as amended, ordered to stand part of the Bill.
Where a mechanically propelled vehicle is used for the carriage of merchandise not the property of the owner of such vehicle, such merchandise shall, until the contrary is proved, be deemed for the purposes of this Act to be carried for reward.
I move amendment 4:—
After the word "vehicle" in line 41 to insert the words "or a vehicle drawn by a mechanically propelled vehicle."
This is only a drafting amendment. Under the Bill as introduced, goods carried in a trailer would be in a different position to goods carried in a mechanically propelled vehicle. That is as far as the onus of proving carriage for reward or the reverse is concerned. The amendment repairs the mistake.
Amendment put and agreed to.
Section 3, as amended, ordered to stand part of the Bill.
Sections 4 to 6, inclusive, ordered to stand part of the Bill.
(1) Each of the following areas shall for the purposes of this Part of this Act be an exempted area, that is to say:—
(a) the area included within a circle having a radius of 15 miles and its centre at the principal post office in the City of Dublin;
(b) The area included within a circle having a radius of 15 miles and its centre at the principal post office in the City of Cork;
(c) the area included within a circle having a radius of ten miles and its centre at the principal post office in the City of Limerick;
(d) the area included within a circle having a radius of ten miles and its centre at the principal post office in the City of Waterford;
(e) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Ballina;
(f) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Drogheda;
(g) the area (except so much thereof as is situate in Northern Ireland) included within a circle having a radius of ten miles and its centre at the principal post office in the town of Dundalk;
(h) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Galway;
(i) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Sligo;
(j) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Tralee;
(k) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Westport;
(l) the area included within a circle having a radius of ten miles and its centre at the principal post office in the town of Wexford;
Section 7, sub-section (1). To delete paragraphs (e) to (l) inclusive.
This amendment deals with the vexed question of the exempted areas. The effect of the amendment would be to confine the exempted areas to the four cities of Dublin, Cork, Limerick and Waterford. The amendment must not be taken as an admission that the principle is right in any sense. It merely seeks to minimise the extent of the evil. Anybody who cares to look at a map of the Free State, on which are marked the 12 areas proposed to be exempted altogether from the operation of this Bill will realise the enormous amount of territory as well as the very considerable proportion of the entire population embraced. The circumstances or arcs of these 12 exempted areas constitute twelve new boundaries within the Free State as far as transport is concerned. They constitute also 12 new administrative problems. The Gárda Síochána will be required, in order to try to enforce this Bill, to see that people registered in transport business inside an area do not go outside the arc of that area. That is a preposterous proposition and it is simply incapable of being administered. The result will be that persons in these towns which are the centres of this principle of disorder will spread that disorder far outside the circle when it suits them. The possibility of being caught and prosecuted for breaches of the Act will be very remote indeed.
It is extraordinary that at a time when the general tendency is towards encouraging fusion and amalgamation of various competing interests in an industry, that is over catered for, like transport, so as to secure efficiency and solvency, the Minister should by this Bill seek to perpetuate a system of transport by "huckstering" methods. I think the term "huckstering" is quite appropriate to apply to it—men going around who who have no knowledge whatever of the principles of transport, with one lorry hauling one type of goods to-day, another type to-morrow, doing nothing at all the following day, charging different rates to different people, with no principles at all of business. That surely constitutes "huckstering"—"huckstering" without any science whatever attached to it. That is the principle enshrined in the Bill so far as these 12 great areas are concerned. There is really no question whatever of protecting the ports. That is a plea that cannot possibly be advanced with any degree of reason in support of the proposal because Section 15 prohibits a licensed transport undertaking from giving any preference whatever to any person or place or in respect of any particular commodity.
There is further protection provided in Section 51 (4) by which the Minister must not compulsorily transfer the business of any licensee to an authorised merchandise carrying company unless he thinks that it is in the interests of the community so to do. The Minister said that one of the justifications for it was that it was thought that, in relation to these towns, it was necessary to have such a provision so as to ensure, in the first instance, that these steamship services would not be unduly interfered with. I do not think that you need have any particular concern about the steamship companies. The overwhelming majority of them, those who carry, I suppose, nine-tenths of our trade, are not Irish companies at all. The Minister or his Department exercise no control whatever over their rates, their policy, their sailings, or anything of the kind, and why he should evince such an interest in the free action of these shipping companies, many of whom have proved themselves definitely unfriendly to the interests of this State, is a mystery.
He said, in the other House, that the railway companies indicated their acquiescence in this exempted areas provision. My information is that one railway officer, having no alternative, indicated that his company were agreeable. That railway officer is less than two years back from China, where he spent the previous 20 years. He lives in Belfast and knows nothing of the situation here except what he has gathered in fleeting visits during the past two years. It was to this gentleman from the East that the Minister went to get his views as to what was good for the transport services of the country. The principal railway company. I am informed, indicated their very definite objection to this as being inequitable and undesirable generally. In fact, amendments were proposed which were designed to limit the areas, even in Dublin, to five miles and I understand that the companies were in favour of these amendments. I am not putting it forward from the viewpoint of the railway company at all, but on the general principle that, if you have control of transport, it should be control universally exercised. The exemption prevents either the railway companies or any other controlled transport service from competing on equal terms within these areas, and, to that extent, these exempted areas are entirely inequitable.
Section 14 of the Bill lays it down that no transport concern can get a licence unless they pay rates of wages and observe conditions of service which are considered by the Minister to be reasonable. That, certainly, is a proposition I subscribe to and, I think, one which the House generally should subscribe to, but that will not apply to those who are licensed for operation within these areas only. The companies licensed for general transport business become common carriers. They have to take whatever type of traffic is offered to them so long as it comes within the terms of their licence. They must give the same treatment with regard to rates and facilities to all. They cannot simply give a rate that enables them to get the traffic or to carry it for a profit at a particular time. They have to submit a classification to the Railway Tribunal and, afterwards, a schedule of rates which the Tribunal can accept, reject or modify. They are subject to all these restrictions, very necessary restrictions, in regard to public service, but those operating for traffic which begins and ends within these areas are free from all that. It means, in effect, that they are handed over all the traffic operating within these areas so long as it does not go outside it, so that you shut out, so far as effective competition is concerned, or so far as a reasonable share in the traffic is concerned, railway companies, railway-owned lorries, and all authorised merchandise carrying companies.
The argument the Minister advanced in regard to administrative difficulties, in regard to food supplies and other considerations, if they applied at all, would apply to big centres of population like Dublin and Cork and, to a lesser extent, to Limerick and Waterford. They could have no weight whatever in regard to places like Westport, Ballina, Drogheda, Tralee or Sligo. To say that an area of ten miles from Ballina, Westport or Tralee is a suburban area is really a joke and there is no justification whatever for exempting such places.
The Minister says that this is really an excellent provision because, if those people have to apply for licences, they will apply for licences to operate generally outside the area and, to that extent, they would be competing with the other companies and will have to be purchased, but, just a few minutes ago, when I put up a similar proposition in regard to people who previously carried only beet, the Minister said that they certainly will not because they did not operate previously, although there was no restriction on them, and that they were not likely to do it under the Bill. If it applies in the case of beet, it surely will apply in the case of a person who has been operating only within a certain area now? He will not have the necessary equipment, I presume, to go outside and, in any case, he would only seek to compete elsewhere if he thought it was going to pay him and that there was a chance of being purchased by some other company as a result, but the disadvantage accruing from any such development is certainly more than counterbalanced by the fact that the regular companies are required to observe trade unions conditions and submit to all sorts of restrictions in the public interest and are debarred from effectively operating within those areas. They are debarred from effective competition because of the restrictions to which they have to submit and from which the others are free. It would be quite ridiculous to suggest that they could compete under fair conditions with the others.
As I said before, it is quite impossible to hope that this can be administered because of the administrative difficulties. The great extent of the arc of each place would place a task on the Civic Guards which it would be quite impossible for them to fulfil. The amendment, I suggest, is a reasonable one because it leaves the four cities still uncontrolled. I do not agree with that principle. I only accept it as a lesser evil than having 12 such areas. The amendment suggests that eight of these exempted areas should be brought within the operation of the Bill and I sincerely hope that the Minister will favourably consider that proposal.
I should like to ask the Minister to say, when he is replying, why there should be any exempted areas at all. I do not know that any real reasons have been given why these areas, of which these towns form the centre, should be excluded from the operation of the Bill.
I should like to point out to the Seanad that this Bill restricts, and, to my mind, restricts to the point that it will drive them out of business, people who are at present operating transport services validly and, to my mind, more efficiently, than the railway companies did and, when the question is asked as to why there should be exempted areas, I would ask why these people should be interfered with at all. I have heard the phrase used "eliminate unremunerative transport." At the present time, the railway is unremunerative transport and, accordingly, when the question is asked as to why there should be any exempted areas, I ask why this Bill should be introduced at all to circumscribe and restrict and, practically, to delete existing transport services which have secured the trade because they have done it better than the previously existing transport.
Might I ask the Senator why he did not vote against the Second Reading of the Transport Bill if he takes that view about it?
I did not vote against the Second Reading of the Transport Bill because, if this Bill be accepted and administered in a reasonable spirit, it will improve general transport. People, apparently, want to class a town like Ballyporeen with a town like Tralee. I know both and I know trading conditions and I know the necessity for an exempted area around one which does not exist around the other. I have had something to do with road transport in Ireland long before there was a lorry on the road.
I do not know whether it is wiser to confine my remarks to the amendment moved by Senator O'Farrell or to answer the question asked by Senator Guinness. We decided upon the introduction into the Bill of this exempted areas clause because it seemed to us that, not merely was it going to simplify the administration of the Bill, but that also it was going to help us to achieve our general objective.
I mentioned here, on the Second Reading debate, the considerations that were uppermost in our minds when the particular problems associated with Dublin City came up for examination. In the City of Dublin the advisability of having an area of exemption appears to be quite clear. There are quite a number of people who are engaged in the carrying, distribution and collection of goods of one form or another in relation to the activity of the city who do not constitute a transport problem and whom we do not want to bring subject to control and whom we can allow to carry on in the manner in which they are carrying on at present because they are not doing any injury to the general transport position. By exempting them from the scope of the Bill, we not merely simplify its administration but we produce a position in which these people will have a very direct inducement to confine themselves and their activities within the exempted areas with which they are concerned and not to set themselves up as long distance goods carriers in competition with the railway company, who would have to be acquired or eliminated in some other way if the position we want to achieve is to be brought about at any reasonable date.
Having decided that the exempted area was desirable in relation to Dublin, we saw at once that almost similar conditions applied in the case of Cork and, in fact, to some extent, similar conditions applied to every town, but they seemed to us to apply particularly in relation to these towns from which there were regular steamship services. It may be that, in the case of Ballina, the circumstances that exist in Dublin are not repeated except to such an extent as to be of no importance but we have to take into account not merely the present position but the possibility of future development. Development necessitating such transport organisation appears to be more likely in the case of these towns than in the case of other towns.
We must not leave out of account also the fact that there are shipping services from these towns which are an important consideration. It is undoubtedly true that we have taken power to give licences to certain shipping companies. They may not be anxious to undertake that work and, in any event, we think persons who may be engaged in short distance transport and delivery work about these towns might be allowed to continue doing so. There are people whose activities are centred on a port. They do not constitute any transport problem. I do not believe they are doing any damage to the railway position. Senator O'Farrell talked about the shipping companies who are engaged in this business being all foreign companies, and in fact hostile to the interests of the country. The Senator's amendment proposes to delete from this part of the Bill every port except one from which an Irish shipping company is operating services. There are some Irish shipping companies; they are not all gone yet. With the exception of Limerick, the services they are operating would be exempted from this section by the amendment.
My amendment does not prevent shipping companies getting licences.
I was talking of ports, not companies. My experience has been that the whole demand has been for an increase of the exempted areas. I think I can say to the Seanad that even if I agreed to accept some of the recommendations I could not get them through the Dáil. In the Dáil the demand was for an increase in the size of the exempted areas.
An extension of the areas.
There was only one amendment asking for an extension. The others were the other way about.
Only one amendment was actually tabled, but I think that was owing to a breakdown in the machinery of a certain Party, rather than disinclination to move amendments. From the various speeches made on the Second Reading and on the Committee Stages I rather contemplated a flood of amendments coming in from every town affected. I was surprised they did not come. What is the position? It is correct, as far as towns served by one railway are concerned, that no objection to the exempted area has been raised. The representative of the railway company who came to the meeting at which the question was considered may have been from China or Timbuctoo. That does not matter. As representative of the company, he said that they were making no objection, subject to the size of the area being fixed, so that they would not overlap. That was the particular consideration that applied. As the Bill stood originally, the areas were so fixed that there was certain overlapping, and there was the possibility that persons might be free to operate services covering a number of areas, and not merely one. That does not apply now. As far as the other ports are concerned, there are special difficulties. In the case of Tralee, we had quite a number of representations for an increase in the size of the area, mainly based on the danger that existed in the minds of prominent traders, and the harbour authorities at Fenit, that the operation of the railway company was not friendly to their port. They instanced the fact that it was not possible for a trader to get a through rate from any railway station in Kerry to places in Great Britain via Tralee port, whereas it could be done through other ports. They argued in consequence that the area should be extended to cover the whole of Kerry, or a very substantial portion of it, so that the existing road services would be continued without restriction. I do not think that is necessary. I think it is only necessary to remove the restriction over a limited area to certain surrounding towns, of a distance of say ten miles, and to regularise the position by the powers in the Bill, of having a road service if adequate services are not provided by the railway company, and if no steps are taken to provide them.
In the case of Sligo, Galway, Wexford and other towns Senators who know the circumstances there will agree with me that there is a fair amount of local transportation going on. It is done by people interested in that type of business who do not propose to engage in any more extended business. There is no necessity to bring them under control. We should not bring people under control merely to control them. We should not do it unless it is essential. I maintain that it is not essential because they are not a transport problem. They may be a social or a traffic problem, but they are not a transport problem. No one contemplates forcing people who want to send goods five or ten miles from these towns to send them by rail. It could be said that they could be carried by railway-owned road vehicles. Let them be. It is not going to save the railways by forcing that position. We can allow that position to continue, when we are quite satisfied that no serious reactions are going to follow, bearing in mind that this is going to simplify the position and lessen the cost to the railway in getting into the monopoly position in which we want to put them.
I do not think the Minister has said anything new in regard to the matter. One of his principal pleas was with regard to administrative difficulties. I submit that the administrative problem he is setting himself, in trying to keep these exempted areas within their bounds, will be far greater than the one he is trying to avoid. I was surprised to hear the Minister say that he expected showers of amendments in the other House to extend the areas. I was present at the Second Reading debate, and with the exception of Deputy Corry not a single Deputy said a word in favour of them. On the other hand they were roundly denounced from all sides. I am inclined to think that if he allowed a free vote of the House when the amendments were moved they would be rejected. As it was there was only a fairly small majority in favour of them. If there had been a free vote there was every indication, judging by the tone of the debate, that they would be rejected.
Some people have got it into their heads that exempted areas means exemption from taxation, or something of that kind; that they are privileged areas, and, of course, they asked: "Why not have it in our area?" That was the reason two Deputies from Kerry gave when suggesting that the area should be extended to 30 miles. When asked why they moved for the amendment, they said that some people had asked them to do so, but they were not able to say a solitary word in support of their suggestion. Personally, I believe it to be a ridiculous attitude for Parliamentary representatives to take, just because a few people thought the words meant something else. The Minister's statement that he has not got protests means nothing. Anyone who has gone to the trouble of studying the matter is against this, except those interested in maintaining unregulated competition within these areas. Of course there are interests of that kind. The Minister stated that he had met scores of deputations, and I am inclined to think that they made a very favourable impression upon him regarding these areas and the definition of "existing carriers." I see no reason for them. Senator Guinness asked why should there be any exempted areas. That is the question I am asking. I see no reason for them.
The Minister made the case and we accept it for Dublin, Cork and Limerick, with which Senator O'Farrell agrees to a degree.
In his last speech he said distinctly the opposite.
I am dealing with the Senator's amendment. The Minister said that the establishment of the exempted areas did not constitute a transport problem. It probably does not. The free play of carriers in the limited areas does not matter, but it is an entirely different thing in towns like Tralee, Ballina and Westport. How does the Minister include Westport?
How does the Senator exclude them? I would like the Senator to tell what is the precise difference between Wexford, Galway and Dundalk.
I would like the Minister to tell the House the precise reason why he included Athlone and exempted Drogheda from the operations of the Bill. What principle guided him in these distinctions? Apparently the guiding principle with the Minister was that he was looking for some kind of foot-rule by which he could work. Recently in this House he stated: "We have to get some foot-rule by which to work, some standard by which we could distinguish one town from another and the standard was that from these towns there were regular steamship services." The Minister was merely looking for some sort of a foot-rule, and the one he applied seemed as good to him as any other. He admits that his main purpose was to achieve exemption for Dublin, Cork, Limerick and one or other towns. Why add these other exemptions? These amendments restore to the Minister the position which he was first out to secure. Was the Minister looking for some form of procedure to apply, and the application of this foot-rule seemed as good as any other? His foot-rule depended upon the existence of regular steamship services from the towns mentioned.
Where is the regular service between Westport and any other port. Where is the regular service between Wexford and other ports. Why should Wexford be exempt? This Bill is a restrictive measure. If the purpose is to give the railways a chance they must be given a chance, but there is a whole lot that is very unpalatable in the Bill, and in particular very unpalatable for farmers. They will find that out when the Bill is in operation. Why bring in all these exempted areas? There is some case for exempting four or five of the big cities. We are not going to constitute any traffic problem by exempting them, but in regard to the other towns referred to in the amendment, I do not see any necessity of the policy of the foot-rule.
The main purpose of this Bill is to try to get the railways into a better position by getting traffic that they lost in these areas. Senator O'Hanlon has twitted the Minister because he is not consistent in removing Athlone and Mullingar from the scope of the Bill. To be consistent we would include these towns, because farmers want open transport, especially in the towns. If the Senator likes we will include these places. There is no question of the railways being injured by short distance traffic. They will not get that traffic. They will not get traffic from Swords to Dublin so that that will not injure the railway. It is the same all over the country. People carrying milk or vegetables are doing public service that will not injure the railways.
I am not surprised that the Senator wants to explain himself. He said one thing that was perfectly true, that the Bill will be very unpalatable to the farmers. I wonder why he is so much in favour of it, if that is the case. It will be unpalatable to the farmers. They are very patient and are enduring a lot in order to help the railways. We are in favour of helping the railways, but when my friend, Senator O'Farrell, made that amusing statement about the two Kerry T.D.s that they did not understand what they were about and knew nothing about the amendment they were moving—I think I would recommend Senator O'Farrell to go to school again and to go to school in Kerry, because my impression of the Kerry T.D.s is that, able though Senator O'Farrell may be, he will find that he could not hold a candle to any T.D. from the County of Kerry. That is my impression of them, and that is my impression of Senator O'Farrell as well, though I have very great respect for him. I have lived in Kerry for a short time and I have a great respect for the intelligence of the inhabitants of that county.
I wish to tell Senator Comyn that I was not running down the intelligence of either Deputy.
I do not suppose for a moment that Senator O'Farrell was running down their intelligence. I am sure the Kerry T.D.s will be greatly amused when they see the report of his speech. I think that this ten-mile radius is altogether too small, and particularly in regard to Tralee. Tralee is, probably, the best business town in Munster in its own way and within its own limits. It was the richest town in Munster. It is the centre of an area where the farmers are the most industrious in Ireland, except perhaps the farmers of West Cork.
Tralee, when I know it, going to quarter sessions and assizes, was a very prosperous country town. The trade of Tralee in flour and other commodities extended almost as far as Mallow in the County of Cork and extended into the County of Limerick. I would be greatly surprised if the Tralee people are satisfied with this ten mile radius, because the ten mile radius does not bring them to any of the important centres where they supply their goods as a rule— flour, meal, timber, zinc, coal—all the commodities that come in at the Port of Fenit and that are dealt with in the large stores at Tralee. I would be greatly surprised if the Kerry people, when they see the operation of this Bill, do not make some representation to the Minister to extend that area by many miles. That is Tralee. The Kerry people, I know, are very well able to look after themselves but I just mentioned that matter because the two able men from Kerry were represented here as though they did not know anything of what they were talking about.
There are other towns also— Ballina, for instance. I am in favour of doing something for the railways and it is for that reason that I am in favour of this measure at all and in favour of these restrictions that will not be very unacceptable to the farming community. Ballina is a fine town and a fine port. There are great numbers of cattle in that area and that ten-mile circuit is very small indeed. Then, you have Drogheda and Dundalk and that capital City of Galway. Why should not Galway be in as good a position as Dublin or Cork? Ten miles is too short a radius for Galway. Even at that, I can imagine screaming and moaning at the bar outside of Galway when this Bill comes into operation. A ten-mile radius from Galway will not reach any important town in the county. It will not go to the Clare border. I do not think it will go to Dunmoe. It will not go to Athenry or Gort. It is 14 miles to Athenry. Therefore, this exempted area will simply mean for the City of Galway, which is the western port that is going to be, I hope, an Atlantic port—this radius of ten miles from Galway is very short and will only include the suburbs of the town itself.
Again, take Sligo as an example. I think the same considerations would apply there, and I do say that if you are going to have any exempted areas at all, you ought to exempt all these principal seaport towns as well as Dublin or Cork. A suggestion was made in regard to Athlone. If we are going to do anything for the railways, I think we ought not to exempt Athlone for the reason that it is on the railway line.
It is a terminus, but Athlone makes something by reason of the fact that the railway passes through and there are various other considerations. It is more convenient for the railway companies to have a service, and a full service, around Athlone than around Westport or the other seaport towns.
The railway passes through Dundalk and Drogheda.
They are terminal ports. We must arrive at some balance. I am in favour of the railways, but we must have some balance. We must have some exemptions, and if you have them for Dublin and Cork, you ought to have them for the other seaport towns in this list which the Minister has given.
Senator O'Farrell, in his speech, indicated that, because of the restrictions, the people in these exempted areas had an advantage over those outside the areas. I want to ask the Minister why the same conditions regarding rates of wages and hours should not apply in the exempted areas as apply outside them. I want to be on the Minister's side in this, because I think the dock labourer and the shipping carter ought to have an opportunity of earning his living as well as the railwaymen and he ought to have the same legislative facilities regarding rates of wages and conditions of work. If the Minister can give me any encouragement in that direction, I shall vote against my colleague on his amendment, but certainly I think it is very unfair to give advantages to railwaymen which are denied to the docker or the carter in the exempted areas. I should like an explanation from the Minister as to why that is done. It is laid down there for railwaymen outside the exempted areas, but what about the men inside the areas?
I do not think the Senator is correct. It is not proposed to take any responsibility for the railwaymen inside or outside the exempted areas. In the case of licensed carriers, there is a provision requiring that the rates of wages and conditions of employment should be reasonable. That does not apply within the exempted areas, but that does not mean that the rates of wages and conditions of employment will not be equally satisfactory. I think it is reasonable to assume that it is in these areas that the trades unions that look after the interests of the workers will be strongest and best able to assert their influence and see that the rates of wages will not be depressed in these areas as compared with the rates of wages outside. Dock labourers and carters do not come into the legislation at all and are not affected by it.
What about those employed by the shipping companies?
A shipping company, either inside or outside the area, would require a licence and would be subject to the conditions of the licence.
If a shipping company operates only within the area, would they still require a licence?
My natural inclination would be to support the clause, but when we consider that the main object of the Bill is to help the railways, even at the loss and inconvenience of the farmers, we have to see which is the lesser evil of the two. When we consider that this Bill is mainly for the purpose of helping the railways and that the railway companies believe, as Senator O'Farrell, who is mainly their spokesman believes, that this clause is going to put some money into the railways' pocket, and when we consider that we cannot do without the railways, I am inclined to support the amendment even though it might hurt the farmers. I should like to say that if any of the ports are to be excluded, I think Tralee should be amongst them.
I should like this matter to be argued, not from the point of view of the railway company or the transport companies at all, but instead on the general plea that the Bill is intended to organise transport and that there has grown up a state of irregularity—almost of chaos—regarding the business of the transport of merchandise throughout the country. It is on that general ground that the Minister is proposing this Bill, and yet, for reasons, the strength of which I am not yet able to see, the Minister exempts from the operation of this Bill, which is intended to organise merchandise transport, practically all the districts of the country where there is any considerable amount of local transport of merchandise. It seems to be only a case of organising the long distance transport. That seems to me to be nullifying three parts of the value of the Bill. It proposes to allow chaos to continue in respect of all these ports and it cuts across the Minister's case for the Bill. On that ground, and not on the ground of pacifying the railway companies as railway companies, or the railwaymen as railwaymen, or road transport workers at all, but on the general ground that it is desirable to organise the merchandise transport of the country in something like an orderly fashion, I think the exempted areas ought to be brought within the scope of this general scheme of organisation.
The Committee divided: Tá, 19 19; Níl, 19.
- Bagwell, John.
- Barniville, Dr. Henry L.
- Counihan, John C.
- Cummins, William.
- Duffy, Michael.
- Fanning, Michael.
- Farren, Thomas.
- Foran, Thomas.
- Gogarty, Dr. O. St. J.
- Griffith, Sir John Furser.
- Guinness, Henry S.
- Hickie, Major-General Sir William.
- Johnson, Thomas.
- Kennedy, Cornelius
- O'Connor, Joseph.
- O'Farrell, John T.
- O'Hanlon, M.F.
- Parkinson, James J.
- Toal, Thomas.
- Bellingham, Sir Edward.
- Bigger, Sir Edward Coey.
- Browne, Miss Kathleen.
- Chléirigh, Caitlín Bean Uí.
- Comyn, Michael, K.C.
- Dillon, James.
- Douglas, James G.
- Dowdall, J.C.
- Jameson, Right Hon. Andrew.
- MacKean, James.
- Moore, Colonel.
- Moran, James.
- O'Neill, L.
- Quirke, William.
- Robinson, David L.
- Robinson, Séumas.
- Ryan, Séumas.
- Staines, Michael.
- Wilson, Richard.
Tellers:—Tá: Senators O'Farrell and Johnson; Níl: Senators S. and D.L. Robinson.
Amendment declared lost.
The voting is: Tá, 19; Níl, 19. Therefore it devolves upon me to give a casting vote. I give my casting vote against the amendment.
Section 7 agreed to.
I move amendment 6:
Section 8, sub-section (1). Before the word "road" in line 57 to insert the word "merchandise."
This is merely a drafting amendment.
Amendment agreed to.
Section 8, as amended, agreed to.
Section 9 agreed to.
I move amendment 7:—
Section 10, sub-section (2). After the word "licensed" in line 59 to insert the words "in Saorstát Eireann."
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 36 inclusive agreed to.
I move amendment 8:—
Section 37, sub-section (1). After the word "months" in line 59 to insert the words "or such longer period as the Minister may allow."
This amendment is necessary because the Bill as it stands is somewhat too rigid. There is a period of three months fixed, and if for any reason the company was unable to submit proposals within the three months a difficult situation would arise. The insertion of the amendment will leave an element of discretion, and permit of an extension of the period if the circumstances seem to justify it.
Amendment agreed to.
Section 37, as amended, agreed to.
I move amendment 9:—
Section 38, sub-section (1). After the word "months" in line 29 to insert the words "or such longer period as the Minister may allow."
Amendment agreed to.
Section 38, as amended, agreed to.
Section 39 to 49, inclusive, agreed to.
Question proposed: "That Section 50 stand part of the Bill."
In connection with this section I want to put to the Minister a point that has been brought to my notice by the smaller carrying companies. The Minister, on the Second Reading in this House, stated that it was his intention to safeguard the smaller companies to this extent: that they would have an opportunity of applying for a transfer themselves and of not waiting until possibly some larger company might put them out of business and then ask that they should be transferred. The point is this: if a company, whether it be one of the passenger-carrying companies or one of the smaller merchandise carrying companies, applies for a transfer and the transfer is refused by the Minister, can the railway company or, vice versa, the other party carry on business pending another application for a transfer being made?
That is not provided for in the Bill. As it stands, a company or a person operating a road service may apply for a compulsory transfer of a licence and be refused. It may renew the application at a later date, or an application may be made by the railway company for the compulsory transfer of the licence. Each such application would have to be considered. The circumstances which had prompted a refusal of the transfer in the one case would apply in the other unless the circumstances had undoubtedly changed.
The position is that I contemplate independent operators being acquired by process of agreed purchase. What I propose to safeguard against however is this: the railway company or the tramway company declining to purchase but at some time trying to get the business by smashing its competitors by uneconomic competition. If I were to come to the conclusion that the railway company concerned or the tramway company was deliberately trying to get itself into the position of exercising a monopoly by a process of uneconomic competition and not by a process of acquisition, then I would be disposed to grant every application for the compulsory transfer of licence made by independent operators. I do not think it is likely that either the tramway company or the railway company will act in that way. I think we will get the companies to operate the Act in accordance with the policy enshrined in it. It is necessary, however, to have these safeguards. One can visualise the case of an operator who might be subjected to competition and was really unable to fight that competition. The independent operator, even if he succeeded in fighting uneconomic competition, might be obliged to sell his service at the end of the period at a time when the value of his service had been very much depreciated.
The proposal is that the beginning of the period, as soon as the operator comes to the Department and shows that in fact these methods of uneconomic competition were being used against him he would be able to apply and get an order for acquisition at that stage and not at the end of the period. The only safeguard which an independent operator would have under the circumstances suggested by the Senator is the assurance that he would be given by the Minister at the time, that he did not regard the circumstances as such as would justify him in issuing an order for the compulsory transfer of the licence and that so long as these circumstances remained the same policy would operate. If there was through some eventuality a change in the circumstances then perhaps a different policy might be decided upon. The independent operator would be safeguarded to the extent that he could carry on the service and could develop the service. He could proceed to operate the service as if this Bill were not there in the certainty that if an order for the compulsory transfer of his licence is made he is going to be compensated for the pecuniary loss involved.
Certain people thought that there might be this danger, that a position would develop in which independent operators would not apply for a transfer of licence or would not have applications made in respect of them by the railway companies and that they would be hesitant to develop their services in consequence or to undertake new developments and that consequently we would have a period in which development would not take place and unsuitable services would be maintained. I do not think that is the situation. I should like to say to the persons operating these services, whether passenger services or merchandise services, that they can go ahead on the assumption that if at any time they are acquired compulsorily they are going to be compensated for the pecuniary expense and loss involved. In the meantime there is no reason why they should not develop their services because any money spent in the improvement of the services would be recouped to them if and when the transfer takes place. Undoubtedly it would be open to an operator who applies for a transfer in the first instance and whose application was refused to go ahead on the assumption that a transfer order would not be made on the application of any other party for some considerable time at least. Of course one can never legislate against changing circumstances and if a change in circumstances took place in two or three years' time a transfer order might be made but in that eventuality, if the service of the independent operator had been extended, the amount of compensation would be increased.
I was asked to put down an amendment, which I did not because of the difficulties involved, providing that where an application for a transfer was made and refused, no such application would be granted for a period of one or two years. Does the Minister consider that feasible? Suppose a case occurred in which an operator made application for a transfer order and the transfer order was refused, that he then went ahead and spent money, but found that at the end of a period he was up against a certain class of competition and that even though he had spent this money his position was weaker because of the competition. That is the case put to me, and it seemed to me there was something in it.
I should like to consider that question. The only difficulty I see is this: immediately the Bill is passed we may get a flood of applications from Dublin for the compulsory transfer of licences. Ordinarily they would be all refused right at the beginning. Instead we would say to the tramway company: "You are the principal operator in the city. We want you to determine your policy. If you are agreeable to go ahead and acquire the other services, we suggest that you should endeavour to do so by agreement with the parties concerned." It would be only in the event of the tramway company not adopting that suggestion or finding it difficult in doing so that the compulsory clause would operate. We might have the position in which applications from independent operators for the transfer of the licence would be refused at the beginning and granted later if it were necessary to implement some policy which was considered wise. Once the initial period is over, I think we can contemplate some such practice as the Senator suggests, namely, that if some person applied for a transfer and the application had been refused, that would be a safeguard against any transfer for a year or two or for some such period, but I should not like to have such a regulation imposed from the beginning because it is difficult to see how it is going to be worked out in the first three or six months in the City of Dublin where it is conceivable that we may get a flood of applications. We may refuse these automatically in order to compel the parties to come together and make an agreement, but we might have to go back on the applications if we found that the policy aimed at had not been worked out. I should like to consider this matter.
There is a certain amount of uneasiness in regard to this matter. It is a matter that the Minister might consider.
I should like to ask, if, in granting a licence to a carrier, the Minister grants it in respect of a certain number of vehicles, or in respect of an area?
That provides a certain safeguard that I think is necessary. Anxiety is expressed on behalf of the so-called existing independent carrier, that he may be driven out of business by the railway company, but the shoe is on the other foot altogether. Why has not the railway company knocked him out of business up to the present? It is he who has been knocking the railway company out of business. There is no reason to fear for him after this Bill is passed, any more than before it is passed. In order, however, to get his business purchased at an enhanced value he may develop an intensive competition in certain areas to compel the company to buy him out. If there is a limit to the number of his vehicles, based on the number he had before the Bill was passed, there is a certain amount of protection, but unless there is that protection, there is nothing to prevent him boosting his business in order to get paid an enhanced price for it.
As far as the merchandise services are concerned, they are limited in their dimensions. Any expenditure of money on equipment that would take place would be in the direction of improving the equipment, in increasing its merchandise carrying capacity. But this section relating to compulsory transfer applies to passenger licences where there is no such limit. In fact, there is an obligation under the Road Traffic Bill on the operator to improve and extend the services. A person or a company who neglects to carry out that obligation may have the licence withdrawn. It is probably persons in this category who have been making representations to Senator Douglas.
Question put and agreed to.
I move Section 51. To add at the end of the section a new sub-section as follows:—
(5) The Minister shall not make an order under this section in respect of any existing carrier's licence or passenger licence when such licence is part of the assents of a company which is in liquidation or of a person who is insolvent at the date of the passing of this Act.
I do not think this amendment requires very much explanation. The Minister may say that it is not necessary as no Minister would act under these conditions. I think it is quite obvious that it would be grossly unfair to expect a transfer to be made for the purpose of paying creditors as might conceivably occur. I think the proposed sub-section is fair and reasonable and one that would seem desirable.
This amendment if it were passed would involve an elaborate investigation by accountants on behalf of the Minister, to determine, in the case of every application, whether the applicant was solvent at the date of the passing of the Act. I think that would be an impossible obligation to impose on the Minister but there are also other considerations. Firstly, the sole consideration that should weigh with the Minister in relation to applications of this kind is public policy, whether public policy was going to be served by granting an application or not. It would be for the interested parties to put forward considerations such as are suggested in the amendment in accordance with the provisions of the Bill, for the Minister's consideration in the first instance or, if he decided to grant the application regardless of these representations, for the arbitrator's consideration in the second instance. I should like to point out also certain difficulties that might arise. One can contemplate a merchandise carrying business which, on principles of strict accountancy, perhaps might be considered insolvent but which is in fact giving to the owner a means of livelihood even though that means of livelihood is secured by reason of the fact that provision has not been made for depreciation or something of that kind. In the case of the transfer of that person's licence I think he would be entitled to compensation of some kind even though he might be insolvent by all the rules of accountancy.
There is also another case. A person must be successful in a road transport business, but might be bankrupt in some other business which he was carrying on. The road transport business might be a paying concern. It might be the only paying asset he had and all the profits might have been absorbed in other branches of his business and the owner would be bankrupt because of his general business. In that case, if the liquidator were transferring that road transport business, he should be entitled to get for it whatever its value was to the person proposing to acquire it under the Bill. It is undoubtedly correct that no Minister would agree to transfer compulsorily the licence of an operator who had become bankrupt, and if he had to consider that the service was going to stop in any case, and that the application for the transfer was only a scheme to get from the railway company concerned something for the assets that could not otherwise be secured. In such case an application for a transfer would be refused. Having regard to the type of cases that might arise, having regard also to the rather considerable obligation imposed on the Minister, I think the amendment must be resisted. I shall again summarise the objections. One is that it involves an examination by the Minister of the solvency of each concern in respect to which an application is made at the date the Act is passed.
Even if the application were made in 12 months' time, it brings in another consideration which it should be the concern of the interested parties to advert to and not the Minister. The Minister gets an application for the transfer of a licence. The fact that such application is made is published and all the interested parties know of it and a period of time elapses during which they can make representations. If they know of any consideration of that kind, it is for them to come forward and bring that consideration to the notice of the Minister. It might determine his decision on the question of public policy. It might not, but if the services are of no value to the owner, presumably, the arbitrator will take that fact into account and will decide that there has been no loss, or will decide that there would be no loss and, consequently, no compensation would be awarded. On the other hand, there is the difficulty with regard to the types of cases I mentioned, a service that might, on strict accountancy principles, be deemed to be insolvent, but which, at the same time, was yielding a livelihood to the owner; a service that might itself be solvent, but was linked up with an unsound business owned by the same person, resulting in that person being rendered bankrupt. There are possibly other types of cases that I cannot call to mind at the moment, but, having regard to all these considerations, I think it would be much safer to leave the Bill as it stands.
The Minister takes into account the public interest. The transferee will have knowledge of the circumstances of the transferor's business because you can take it that it would be the definite policy of the Minister under this Bill not to consider an application of that kind unless it were shown that attempts to reach agreement by private negotiation between the parties had failed and that that was why compulsory acquisition had to be resorted to. Ordinarily speaking, no application for a transfer, whether made by the railway company or an independent operator, will be granted except as a result of the failure of negotiation between the two parties to arrive at agreement amongst themselves. The transferee, therefore, would have, in the course of these negotiations, acquired a full knowledge of the solvency or otherwise of the transferor's business and would be able to make any representations to the Minister which he considered necessary on that point when the application for a transfer was being examined. The Minister, however, should be required mainly to have regard to public interest. The question of the assessment of compensation which would be based on the pecuniary loss or expense suffered by the loser of the business is a matter for the arbitrator after a compulsory order is made. Having regard to all these considerations, I think the amendment is one that should not be inserted in the Bill.
Might I suggest to the Minister—I do not know whether it is a feasible suggestion or not— that, when an application for a transfer of this description is made, in order to save the Department the trouble of making enquiries with regard to solvency, the application should be accompanied by a certificate from a chartered accountant setting out what the business, in his opinion, was solvent and, thereby, put the onus on the applicant and not on the Minister.
If a man has a licence and it is a profitable thing, why should he not get the value of it whether he is solvent or not? Moreover, why should a person be under an obligation to prove his solvency on all occasions? I am surprised at the form which this amendment has taken and I am surprised that Senator Douglas should make himself responsible for an amendment that would enable the railway company to say of any man carrying on business in the City of Dublin or elsewhere: "That man is not solvent; he is not able to pay his debts," and that they should, thereupon, be entitled to have an inquiry into the solvency of any person in the City of Dublin. I think the amendment is very unreasonable.
The amendment may be unreasonable from a lawyer's point of view, but there are business considerations and questions of equity involved. If, for instance, a firm is in liquidation and, during proceedings in court, the liquidator actually applies for a postponement of the proceedings for a period of six months in the hope that the concern will be compulsorily purchased or purchased on the application of the licensee by the railway company or somebody else, is there not in those circumstances some necessity for providing against an application of that kind? Why should not each firm be allowed to show that it is a paying concern before any question of compensation is considered. The Minister says that a firm may be insolvent, according to strict accountancy methods, but, if it is actually in liquidation and it can still show that it is a competing concern and should be bought out, I assume from what he says that compensation should be paid. Why not allow that firm to continue running and see how long it is going to last rather than foist it over by compulsion on another transport concern? The firm I have in mind is in liquidation and if it had to stand on its own feet and on its own reserves, it would go out of existence, but if it makes an application under this section, and the Minister grants that application, the company to which it is transferred will have to pay compensation for it, although, if it is allowed to go on, it will go out of existence.
Senator Comyn is very much surprised that I should move an amendment of this kind. It is not the first time that I surprised Senator Comyn in this House and it is not the first time that he has surprised me, but he has rarely surprised me more than he did by the speech he made on this amendment in which he said that, if carried, the amendment gave the railway company authority to have an inquiry made into a person's solvency. If he had read the amendment carefully before he made his speech, he would have found that the amendment, be it good or bad, does nothing of the kind. It provides that the Minister shall not make an order if a company is in liquidation. No question of compensation can arise until the Minister makes an order and, therefore, this does not deal with a question of compensation. It prevents the Minister from making an order and the railway company or a similar company, assumedly, could not make an application on the grounds that it was a case in which the Minister could not make an order.
Having said that, I want to make it clear that I do not agree at all with the reasons given by Senator Comyn. I am still of the opinion that there were good grounds for putting down an amendment of this kind but I must confess that the Minister himself has convinced me that the amendment, as drafted, would not be practicable or workable. I think there is a case for making it clear that where a particular concern —and not necessarily as part of the assets of a larger concern—is actually in liquidation, no order should be made but I am quite convinced by the Minister's statement that the latter part of the amendment would not be practicable. It refers to a person who is insolvent and when you come to the meaning of the word "insolvent" it is very difficult and I quite agree that it would be unworkable as it stands. I am not convinced that there is no case for consideration but I do see the difficulty and, for that reason, at any rate at this stage, I do not propose to press the amendment. I agree that it would not be practicable so far as the individual is concerned.
Amendment, by leave, withdrawn.
Sections 51 and 52 agreed to.
Whenever a transfer order is made in relation to a merchandise (existing carrier's) licence or a passenger licence or a reduction order is made in relation to a merchandise (existing carrier's) licence, compensation shall be payable to the person who was the licensee under such licence immediately preceding the making of such order by, in the case of a transfer order, the person to whom such licence is by virtue of such transfer order transferred or, in the case of a reduction order, by the person upon whose application such reduction order was made, and the measure of such compensation shall be the pecuniary loss and expense (if any) which such first mentioned person sustains or incurs or will sustain or incur by reason of such order and which is the direct consequence of such order.
I move amendment 11:—
Section 53. To delete in line 44 the word "be" and to substitute therefor the word "include."
This amendment was put down as I thought it was the most effective way of raising certain difficulties under Section 53. Perhaps I ought to be frank with the House at once and say that I do not think that the amendment, as it stands, would be satisfactory or workable, but I am not convinced that the section, as it stands, is one which will not create a great deal of difficulty. Senator O'Farrell is very much concerned for fear that particular Senators should be interested in both sides of this particular case. His idea is that we should only be interested in one side. For my part, I have put amendments down some of which are definitely in the interests of the railway company and others which are possibly in the interests of people who may have to get consideration because I believe the Bill will not achieve the purpose required, even for the railway company, unless based on equity and fair play, and I am quite satisfied the Minister is endeavouring to reach that end.
In the measure passed in Great Britain, which is not exactly similar but of similar character, the actual basis of compensation was set out. For reasons which I can quite understand, the Minister has not set out the exact basis of compensation in this Bill but has defined it as "pecuniary loss and expense." And this section seems, when it essays to establish pecuniary loss and expense, to limit it strictly to what is regarded by everybody as pecuniary loss and expense. I do not personally know what it means and a great many people are uneasy because they do not know. From the Minister's speeches in the House to-day, it is quite obvious that he means something very much wider than a great many people think. He referred, for instance, to a company which had applied for a transfer and which did not get the transfer and he said it might be perfectly free to go on spending money in developing that service knowing that they would get the benefit of it when they came to get compensation, if the transfer was given after. I am putting this as a case which requires consideration although I am not interested in any of these companies. I am not certain that money spent in development could be proved to be pecuniary loss or expense, if, say, a year after it was proved that the pecuniary loss would have been no benefit in the next two or three years owing to other competition.
The fear that exists on the part of certain bona fide passenger men in this case is that, if an application is made for a transfer, the case may be put up to the arbitrator—I do not want to be taken as saying that I take this view myself but I am putting it forward as something that requires consideration —that there was no pecuniary loss because, if it had gone on in competition for three years, it would have been wiped out altogether. They are afraid that the phrase "pecuniary loss" limits it to something actually definable as money. The Minister clearly, from his speeches here to-day, considers that money spent in development of a business would come back again in compensation. I am not even quite convinced that the whole of it should come back but there is a fear that the phrase "pecuniary loss" will be so narrow as really to take the heart out of the people who have to carry on.
The Minister has made it clear that his idea is that we are going to get a policy of absorption largely by purchase or agreement. I hope that he is correct and I think he is and I believe that is the only way in which the Bill can work to the general satisfaction of the public. I think, however, that there will be a considerable number of areas—and I am concerned at the moment with areas not served by the railway company—in respect of which it will be a considerable time before absorption will take place. It is certainly in the public interest that the existing people in those areas, particularly where there are no rail services, should have a reasonable certainty that they would get adequate compensation.
Section 53 is extremely difficult to understand. They are afraid that the words "pecuniary loss" mean only what the arbitrator holds to be "pecuniary loss." They think that too narrow, and they are uneasy as to its effects. They are afraid it might be held to mean that owing to competition there would be no pecuniary loss, because they would have lost everything if they had remained on. I have put the amendment down for consideration by the House.
Senator Douglas has called attention to what is, of course, the most difficult part of this measure, the amount of compensation payable— the measure of compensation. I do not see how it would be possible by words to come nearer to what is intended other than by the words used in the section. These words show that the compensation to be awarded is the ordinary legal measure of damages. They do not include consequential damages or speculative damage. The draftsman has kept as near as he could to the words upon which there have been judicial decisions, and in regard to which it is thoroughly well known what the measure of damages ought to be. In that way he has helped the arbitrator and brought down the language to a point as fine as it can possibly be brought for securing the assessment of pecuniary loss and expenses—that that is the measure of compensation. I cannot imagine any other words which would more clearly convey the meaning intended to be conveyed.
Let me say that if the amendment of Senator Douglas was accepted, instead of using the words "the measure of compensation shall be the pecuniary loss" if the word "include" was put in there, the effect would be to leave the whole thing at large; to say that the measure of damages shall be such problematical loss, such deprivation of profits as he might hereafter make. If the word "include" is accepted it would enable consequential damages to be given, consequential damages which cannot be accurately estimated. As I understand, the Senator does not intend to press his motion that the word "include" should be inserted here, because he knows it would leave the whole question at large, and prevent the arbitrator from having any guide whatever as to the amount of compensation which he should award. However, it was right that the Senator should have brought the question forward for consideration. It has been considered, and I am sure the Minister will have a perfect defence for the words in the section. Speaking for myself, I should say that I do not think any form of words could have been used which would give the arbitrator a clearer idea of the rule which he is to apply in the case of compensation than the words contained in the section. He will have judicial decisions to guide him as to the measure of damages, and as to the question of remoteness of damage. He will also have a guide as to what is and what is not consequential damage. Therefore, I think this section, of all the sections in the Bill, is one which ought not to be disturbed or varied by amendment in this House.
I think Senator Comyn is right when he says that this section is one of the key sections in the Bill. It is upon the words inserted here that is based the whole business of assessing compensation for persons whose licences are compulsorily transferred, and, because of that, one thing is essential, and that is that the words used should be as precise as possible, and the terms of reference to the arbitrator should be as complete as possible. It is because of that, I think, the amendment could not be acceptable. As the Senator admitted, his proposal does not meet the case because it leaves the terms of reference open. It would say in effect that the measure of compensation shall be the pecuniary loss and expense, plus something else which is not specified.
Most Senators will agree that we must get the terms of reference as complete and as precise as possible, so that there will be a clear rule which the arbitrator will apply to every case that comes before him. We got this phrase, "pecuniary loss and expense," because it has a definite legal meaning, and behind it there is a whole body of determined cases to guide anyone who is applying it. I do not pretend to be in a position to give any authoritative opinion regarding the legal significance of the words, but when I saw them I asked a number of questions in relation to them. It seems to me that it is quite clear they achieve our purpose. It may be that somebody might hold that in addition to "pecuniary loss and expense" there should be some other ground for awarding compensation. It has not been indicated yet in what way the terms should be extended, and upon what other ground compensation should be awarded except that a licensee has suffered "pecuniary loss and expense." If there is I am prepared to consider it.
What I am anxious to secure is that any person whose licence is transferred will be recouped in full for the loss he suffers because of the transfer. I do not think we could go further than that. It is going to be impossible in future for persons who put savings into a business, who carried it on and got a livelihood out of it, to continue in that business. Therefore, we want to recoup them for whatever loss they are going to suffer because of the termination of the business by the operation of an Act of Parliament. We want to give back to them whatever pecuniary loss that termination brings upon them. When Senator Douglas quoted me as having stated that money spent in development would be recouped to the licensee if his licence were taken, it is desirable that I should make it clear that that applies, of course, to money well spent in development. Conceivably a person might spend a large sum of money on useless development, which would not enhance the value of the service, but would be wasted. There is nothing to imply that expenditure of that kind would be recouped on the transfer of licence, but money wisely spent which, in fact, increased the value of the service, and which made it more valuable, the owner would be entitled to recover.
One of the difficult type of cases that may arise is that of a person who has in fact been making a loss, but who claims that there was a prospect of profits. I have no doubt whatever that most of the persons whose businesses will be transferred will, in fact, make that claim before the arbitrator, or that the profit they are making is much less than they expected to make, or that a loss would be turned into a profit. Conceivably a person might run an omnibus service into a completely undeveloped district in the hope that the existence of that service would have the result of developing the district, and that consequently there would be future profits which would recoup immediate losses. Presumably the arbitrator would take that into account, even though he would discount very considerably the expectations of the applicant.
In the case I referred to the people who came to me had legal opinion that the words "pecuniary loss" as a direct consequence would rule them out.
I think so, except to this extent, that the arbitrator would have to take into account the capital invested in the business and the general procedure of the business.
Are not the words in the section "or will sustain"?
That is undoubtedly true. In so far as present profits may be regarded as being continuous there is income, and it would continue definitely in the future. I assume that the arbitrator would examine the service and estimate the amount of capital in it, the present value of the assets, the profit accruing, and the prospect of profits continuing, or increasing or diminishing, in the future, the difficulty that a licensee might have in disposing of assets not transferred to the person acquiring the licence, and the difficulty he might have of disposing of the equipment. All these things will have to be taken into account and a figure arrived at which would be the "pecuiary loss" the licensee had incurred or was likely to incur in consequence of the transfer of the licence. If there is anything additional to that I am afraid I do not see what it is. It could be argued that we might have regard less to the "pecuniary loss and expense" or less of the value of the services than would necessitate providing a licensee with means of acquiring another means of livelihood would be, at least, of equal value and open that prospect to him. That might be the basis. I think it would be an impossible basis. It is better to stick to some term which has a definite legal significance, and which can be interpreted having regard to the interpretation placed upon it by different courts of law.
I am in the position that I want to see persons who are losing their licences, whose existing businesses are being terminated, to get as fair a deal as we can give them, without imposing on the railway company, which will have to acquire them, any undue expense. We have to consider the railway company in the matter and not put them in the position that they will be paying more for services than they are really worth. They have got to buy, and we should have regard, in that respect, to the fact that the burden placed upon them will not be an undue burden, having regard to the position they are going to attain, namely, a monopoly position, as we are giving them complete control of transport here. Subject to that consideration, and the position of the railway company, we want to be fair and generous to people losing their present means of livelihood, and I think the phraseology we have adopted meets both these points, although, personally, I am very definitely open to consider any suggestion for their limitation or extension in a manner that can be justified, having regard to the contingencies that it can be shown may arise.
I do not propose to press this amendment. My difficulty really is not unlike the Minister's own. The Minister says he finds difficulty, after getting legal opinion, in knowing what it means. I do not want to add one iota to the costs of acquisition on the part of the railway company. Nothing is further from my mind. What the Minister has stated now, and what he has stated in previous speeches, as to what he desires is exactly what I desire. I believe that is reasonable and proper, but certain people have come to me with legal opinion duly written out to the effect that pecuniary loss and expense, or, in other words, direct consequence, as distinct from pecuniary loss in consequence of the order, narrows it down far below what the Minister has in the Bill. I brought it forward for that reason, as I thought it was desirable that some one should bring it forward in the House and have it examined, if necessary. The case is that the words "such compensation shall include the pecuniary loss and expense which the person sustains or incurs or will sustain or incur by reason of such order and which is the direct consequence of such order" are narrower than what the Minister has stated here and it is something different from pecuniary loss in consequence of the order. I cannot explain the exact niceties.
Amendment, by leave, withdrawn.
Sections 53, 54 and 55 agreed to.
The following three amendments on the Order Paper, Nos. 12, 13 and 14, all deal with Section 56 and are more or less on the same subject, and I think should be debated together.
Section 56. To delete the section and to substitute therefor a new section as follows:—
56.—(1) Where an arbitrator in any arbitration before him for fixing compensation under this Part of this Act awards compensation, such arbitrator may, if he so thinks fit, award to the person entitled to such compensation, in addition to such compensation, such sum as he thinks reasonable to cover the expenses of such person in relation to such arbitration, and any sum so awarded shall be payable by the person liable under this Part of this Act to pay such compensation.
(2) Where an arbitrator in any arbitration before him for fixing compensation under this Part of this Act does not award compensation, such arbitrator may, if he so thinks fit, award to the person who, if compensation had been awarded in such arbitration, would have been entitled to such compensation such sum as he thinks reasonable to cover the expenses of such person in relation to such arbitration, and any sum so awarded shall be payable by the person who, if compensation had been awarded in such arbitration, would have been liable under this Part of this Act to pay such compensation."—Senator Séumas Robinson.)
Section 56. To delete the section and to substitute therefor a new section as follows:—
56.—An arbitrator under this Part of this Act shall have power to award costs in his discretion and direct to and by whom and in what manner these costs or any part thereof shall be paid, and to measure the amount of such costs and to require security for costs to be given to his satisfaction by any party at any stage of the proceedings before him.—(Senator O'Farrell.)
Section 56. To add at the end of the section the following:—
Provided that where the person liable to pay compensation has made an unconditional offer in writing of compensation to any person entitled as aforesaid, and the sum awarded by the arbitrator to that person does not exceed the sum offered, the arbitrator may order that person to bear his own costs and to pay the costs of the person liable so far as such costs were incurred after the offer was made, including the remuneration payable to the arbitrator.
To enable such offer to be made, every such person entitled shall upon demand in writing by the person liable deliver a notice in writing of the amount claimed by him, giving such particulars as the arbitrator may consider should reasonably be given and in sufficient time to enable the person liable to make a proper offer; and, in the event of the person entitled failing to give such particulars in the manner aforesaid, the person entitled shall be liable for costs as if the sum awarded did not exceed an amount unconditionally offered by the person liable pursuant to and within the provisions of the foregoing proviso.—(Senator Douglas, Senator Sir John Keane.)
As the first amendment is in the name of Senator Séumas Robinson, and is, presumably a Government amendment, perhaps the Minister would tell us the reason in favour of that amendment.
The difference between this section that it is proposed to insert now and Section 56 in the Bill as it stands is that it proposes to give to the arbitrator discretion in the awarding of costs. The original section said that the arbitrator "shall award to the person entitled to such compensation, in addition to such compensation, such sum as he thinks reasonable to cover the expenses of the person." It is proposed now to bring in the words "may, if he so thinks fit, award to the person entitled to such compensation, in addition to such compensation, such sum as he thinks reasonable to cover the expenses of such person in relation to such arbitration." That would allow the arbitrator, if he thought it necessary, or just, or desirable, to award no costs at all, or very trivial costs. It would not allow him to award costs against the person whose licence is to be transferred. Sub-section (2) provides that in certain cases he may award the expenses of the person whose licence is being transferred, even though he may not award that person any compensation at all. I think that is necessary in order to cover the possibility of certain cases arising. Not many such cases will arise I think, but they may arise. I think that that new section meets most of the points in Senator O'Farrell's amendment which says "an arbitrator ... shall have power to award costs in his discretion and direct to and by whom and in what manner these costs or any part thereof shall be paid." It meets Senator O'Farrell's amendment except to this point: that his amendment would give power to the arbitrator to award costs against the person who is losing the licence. I do not think that that should happen. One can contemplate circumstances under which a person might be offered voluntarily by the railway company a price for his service which would be in excess of the amount subsequently awarded by an arbitrator. That possibility might arise, and it seems undoubtedly unfair that the railway company should be charged costs because of the fact that the other party was not satisfied and insisted on going before the arbitrator, particularly having regard to the fact that the arbitrator held that the railway company had been more than generous. It is not unlikely to happen.
My own official experience, in relation to another matter where there is a question of compensation to be awarded by an arbitrator, is that it is quite usual for us to offer compensation on a more generous scale than the arbitrator subsequently fixes. Naturally, one likes to get these matters fixed by agreement, if possible, and to avoid the trouble of arbitration proceedings. One is inclined to go a little further than is, perhaps, necessary or just, in order to get agreement. If this compensation is refused by the man and he goes to an arbitrator, who only has regard to the terms of reference and other considerations, the arbitrator often awards him less. The other party, naturally, is aggrieved and quite frequently expresses his grievance in forcible language. The same would apply here. The railway company might be disposed to offer a higher price than the company itself would consider to be a fair measure of the pecuniary loss and expense. The other party might refuse that offer, having, perhaps, an exaggerated idea of the value of his service, or merely for the purpose of chancing his luck before an arbitrator. The arbitrator might award a smaller amount than the railway company had been prepared to give. In that case it does seem at first sight unfair that the railway company should be asked to pay the costs of the other party. We give the arbitrator power to fix, as he so thinks fit, the measure of the costs of the award but we think that the licensee should not lose because of any such circumstances developing. The licensee might, quite genuinely, have an exaggerated idea of the value of his service. He might, in a perfectly bona fide manner, question the generosity or the equity of the offer made to him by the railway company. He might go to the arbitrator in the belief that the arbitrator will, in justice, give him a larger sum. Instead of that, the arbitrator may award him a lower sum, but we think that that sum should not be further depleted by the expenses of arbitration on that account.
The amendment standing in the names of Senators Douglas and Sir John Keane is practically to the same effect and is, I think, designed to secure that where the offer made by the railway company is larger than the award the arbitrator subsequently gives to the other party, the party other than the railway company shall pay the expenses. I am opposed to that, and I think the consideration that I have mentioned is one that should be taken into account. It may not be just cussedness that provoked the arbitration proceedings. It may be a genuine belief that the railway company's offer is too low, having regard to the man's own opinion of the value of his service. I think that in this matter we should rather be inclined to err in favour of the person whose licence will be acquired, particularly having regard to the fact that there is some slight element of doubt as to how the arbitrator will interpret his terms of reference. The arbitrator may be unduly strict in his application of these terms of reference to the cases that come before him, and we might find that he was giving compensation which was unduly low having regard to considerations other than the purely legal considerations. On the other hand, his awards might be unduly high. In view of that, I think we should be careful not to take the risk of inflicting what may be grave injustice. The party losing the licence, and whose business is being terminated, will have a grievance if he finds that the arbitrator gives him less than the railway company was prepared to give. I think it is unwise to increase his grievance by giving the costs against him. I certainly would not be prepared to award costs against the transferor.
The first paragraph of this amendment is, of course, reasonable and in accordance, I think, with general procedure, except that it does not enable the purchasing company in any case to get costs. It only protects the licensee. The second portion of the amendment is, I think, more or less unique, because it gives power to the arbitrator to award costs to the loser in the case. There is no essential difference in this——
There is no question of a loser.
The man who is not awarded compensation is a loser.
The arbitrator might find, in the case of a man who has lost his licence, that he has gained by the loss of the licence. That man gets no compensation.
He loses his claim for compensation, and it is just as if he went into a court of justice, lost his case, and got his costs. There is no essential difference there. I would suggest that that provision might have some justification if, on his licence being transferred on the application of the purchasing company —they would be the initiators in any case in the scheme—they offered him no compensation or a very small amount, and he went to the arbitrator and the arbitrator ruled that he was entitled to no compensation. There might be some justification for giving him some consideration by way of costs, but I think it would be without precedent. If he applies himself to the Minister to have his licence transferred, and disagrees with the company to which he wishes to be transferred regarding the amount of compensation, he goes to the arbitrator and loses his case. Then, I think, it is absolutely without precedent and without justification to suggest that he may also get his costs. One certain effect of this type of provision will be to encourage litigation, and litigation before an arbitrator can be quite as prolonged and quite as expensive as before the High Court. I was engaged fairly recently in a compensation case before an arbitrator which lasted for nine days, and there were £278 costs given against the company. Certainly, it did not anything like clear the costs of the applicant. Here we have a whole field of litigation thrown open with little or no risk to one side. In addition to not having to pay the expenses of their opponents they may compel their opponents to pay their costs whether they lose or win the case. I think the way suggested in my amendment is the fairest. It is based on the Railways Act of 1926, and it deals with the same principle of arbitration. A man is dismissed by the railway company as being redundant. He claims compensation. They refuse to admit liability, or they offer him a sum which he does not think sufficient. He goes to the arbitrator and, if he wins, the arbitrator has power to grant him costs. If he loses his case, the arbitrator has power to inflict costs upon him. The arbitrator may not do it, but costs are certainly never given to a person who loses his case. If that is good law in the case of the employee, it is surely good law in the case of the owner of one of these services.
Otherwise, I think we would require to move an amendment to the Railways Bill altering the compensation provision to bring it into line with this provision now governing the Transport Bill. The problem is the same in each case. Why you should want to protect the one party in every circumstance and let the other man, the worker, take his chances, I fail to see. I suggest to the Minister that he should either drop the second portion of his amendment or accept mine, which is taken from the Railways Act, and which will come into operation in connection with the Railways Bill that the Seanad will be considering in Committee this day week. The subsequent amendment moved by Senator Douglas seems to me to be a perfectly fair one though I would prefer, I think, to leave it to the arbitrator, who in all probability will be a legal person, to rule according to the principles of arbitration in regard to costs as he will have to do in regard to everything else.
I think the Minister has gone too far in this amendment. The first part of his amendment reads: "Where an arbitrator in any arbitration before him for fixing compensation under this Part of this Act awards compensation, such arbitrator may, if he so thinks fit...." Even on the reasoning of Senator O'Farrell, I think the word "may" there should be "shall." I propose to move later an amendment to that effect, to substitute "shall" for "may." Certainly when a man's property and licence are taken over and he is awarded compensation he should be entitled to his costs. I think the second portion of the Minister's amendment is quite right. In regard to Senator O'Farrell's amendment, fancy a small man who has hitherto been earning his living in some remote part of the country being summoned to Dublin where his livelihood and licence are being taken from him and coolly told that he is compelled to give security for costs. That is a very democratic idea indeed.
It applies in the case of a poor railway porter who is being paid 35/- a week when making his claim for compensation, and Senator Dowdall voted for it.
The Senator voted for it in 1926.
I think if the records are looked up it will be found that I did not vote for it. I was here fighting the case of the railway porters and if proceedings are looked up it will be found that I moved a number of amendments. I am perfectly sure that I did not vote for that. At any rate, if this is wrong now it was wrong then.
And if it was right then it is right now.
It was not right, and it is not right in this case. It is very democratic, anyhow. I wish the democratic friends of Senator O'Farrell would examine the point.
It is very democratic from the other point of view—of the man who is paying.
That is all I have to say. Senator O'Farrell's amendment and reasoning on this is on the side of a powerful corporation and is coloured right through against every interest of justice. I am in favour of giving fair consideration to validly established interests which are being interfered with under this Bill. If in order, I propose to move to substitute the word "shall" for the word "may" in the first sub-section in the Minister's amendment.
The Senator can move that amendment on Report.
I wonder if the Minister, in view of what Senator Dowdall has said, would consider deferring this so as to have a section put into the Bill different from any of the proposed sections now before the House. Section 56, as it stood had, I think, many objections. The main objection to it was this: that it rendered almost inevitable proceeding before the arbitrator for costs, because my experience has been that if a man is sure of getting costs, whatever the event, he is certain to go before the arbitrator.
That is what Senator Dowdall is looking for.
No, the Senator is not looking for that. Senator Dowdall is always reasonable. That was the objection to Section 56, and I think the Minister has made an effort to get rid of that difficulty while at the same time being tender towards people whose livelihood is being taken away, and taken away compulsorily. That is the foundation for the tenderness which the Minister has undoubtedly shown in his amendment to the applicant for compensation. The first part of the Minister's amendment is right and reasonable. As regards the second part, a case may arise where for some reason or other a man whose licence has been taken away and whose way of living has been put an end to—good, bad or indifferent as it may have been—may go before the arbitrator. The circumstances may be such that the arbitrator will not give him any compensation at all; but under the amendment the arbitrator is authorised to give him his costs and expenses. I think that is the least that could be given to a man whose livelihood is compulsorily taken away. The compulsion in this case is the sole ground for this special legislation. I take it that is the meaning the Minister has in bringing in the amendment. It is on that ground that I would be inclined to support it.
What interested me most of all was the speech of Senator O'Farrell in defending his own amendment. I do not wish to use words that might be regarded as being rather strong, but when I read an amendment in the name of Senator O'Farrell, a Labour representative, that the arbitrator should be entitled to require security for costs from an applicant for compensation—a person whose business was being destroyed, I did really rub my eyes and look again at it, because that is a thing that is unknown to the law.
Unknown to the law up to the passing of that Act. It is unknown to the law that a man who has a claim should be required to give security for costs before his claim is heard, provided he is within the jurisdiction. If that were the law no man could ever go into a court of justice unless he could give security for costs. I would like to know how many men with a grievance would get their neighbours to go and give security for costs in litigation in which the neighbour was not concerned. Of all the things that I have ever heard that is the most reactionary, the most tyrannical and the most arbitrary. I support Senator Dowdall in the very just strictures which he has uttered in respect of this amendment proposed by Senator O'Farrell, an able representative of Labour. I do not know how the Senator comes to consider that he is an advocate of Labour when he is supporting the most extreme claims of a powerful organisation. The Senator says that his amendment is taken from the 1926 Act which applies to cases where the servants of railway companies apply for compensation. Senator O'Farrell assures the House—I do not doubt his words for one moment because as long as I have been here I have never heard him make a statement which had not a foundation in fact—that that is part of our law, but is it part of our law that a railway servant who goes before an arbitrator and claims compensation is required to give security for costs?
Well, if it is I am extremely happy that we were not in the Dáil or Seanad when that law was passed. I can assure the Senator that if he brings in a proposal to repeal that law I certainly will give him my most enthusiastic sympathy.
Sympathy—not your support?
I am certain the Party will support him. The third amendment on the Order Paper in the names of Senator Douglas and Senator Sir John Keane represents the law as it stands as between a free plaintiff and a free defendant in ordinary litigation. Where a man makes a claim against another for damages the existing law entitles the defendant generally to make an offer and to lodge in court such sum as he considers reasonable. If the plaintiff does not take out that sum or if he does not settle on reasonable terms but takes the hazard of a trial and the verdict of a jury, and if the jury's award is less than the amount lodged in court, then in that case the applicant has to pay all the costs. That represents the general law. Subject to that, I think this amendment is not specific or definite enough. It is not just at all for in the second paragraph it states:
To enable such offer to be made, every such person entitled shall upon demand in writing by the person liable deliver a notice in writing of the amount claimed by him, giving such particulars as the arbitrator may consider should reasonably be given and in sufficient time to enable the person liable to make a proper offer.
Well, the phrase, "in sufficient time to enable the person liable to make a proper offer" is, indefinite and altogether too much in favour of the railway company. Taking the three proposed amendments I would, without any hesitation at all, reject Senator O'Farrell's amendment.
That is the best argument for it.
Perhaps. It might be required of an unfortunate man who is deprived of his livelihood to give security for costs before he can appeal to the courts of his country. That from the representative of Labour. I do think that the railway company, being the persons getting what I might call a monopoly, are not entitled to the terms in respect of compensation set out in their amendment. On the whole, I think that the Minister has done his best to meet the justice of the case, seeing that the person who applies for compensation is the person whose business is compulsorily taken away in theory at least. Therefore, I ask the Seanad to support the amendment which is proposed by Senator Robinson on behalf of the Government.
It seems to me that this is a case in which if there were a conference between Senator Douglas, Senator O'Farrell, Senator Dowdall and the Minister they would probably arrive at agreed amendments. If these three Senators met the Minister we might have on Report Stage an amendment on which all four would agree. Evidently the railway company look upon it as a matter of considerable importance.
I have not spoken on this matter yet. If the Minister is prepared to do what you, a Cathaoirleach, have suggested, I would be very happy if in that way we could reach an agreement. The particular amendment I have put down is not exactly the same as that suggested to me by representatives of the railway company and I have not consulted them at all with regard to the Government amendment. My own feeling is that Senator O'Farrell's amendment is go ing too far and I would not be prepared personally to support it. I think that the second portion of the Government amendment is definitely going too far. I can see that where the railway company or some similar company ask for a transfer that the man against whom the transfer is being sought by the company would certainly want to take it to arbitration. In that case, speaking as an individual, I would not object to reasonable costs. However, this Bill also provides for a completely different case. It provides for a case where a man or a company finds himself or itself in difficulties and where he may apply for an order against the railway company. That order may be made and the railway company may find itself virtually compelled to take over the undertaking. I do not think it is reasonable that they should be compelled to pay his costs as well. We have tried to be equitable. The railway company, though in the main they are a private company, will be looking after the public interests. If the Minister would alter his amendment in that direction it would meet the point. We had great grief expressed by Senator Comyn for certain people who, he said, were being deprived of their livelihood under this Bill without compensation. I do not think that is the case. There is something wrong with the rest of the Bill if that is the case.
I would ask Senators whether we are to go into consultation or not to bear this point in mind: that not in all cases, as Senator Comyn suggested, are persons going to be obliged or compelled to sell their business. There is a very great difference between the case where a company seeks an order for the transfer of somebody else's business and the case where the person who is the owner of that business seeks an order to compel the company to take him over. Senator Comyn forgot that.
He spoke as though he forgot it. He spoke as though the question were one of depriving a man of his business by compulsion. It seems to me that the Minister's amendment does not take account of the likelihood that a person may seek to get his own business taken over by a company, that he will force himself before the arbitrator, bringing three K.C.s and four or five juniors to that arbitration court, knowing full well that, whatever the result, he will not have to pay anything. There is no security for costs there. Everything is playing into the hands of the lawyers under the amendment of the Minister. For my own part I would say that the Minister's amendment would meet what I think is the grievance of the railway company, because it gives the arbitrator discretion as to the amount, but I think that there should be no obligation to make the company pay costs where the person who is the transferor has sought to compel the company to take over his business even though he gets compensation. I think the position differs in that case from the case where the company itself applies for the transfer.
I would be prepared to discuss the matter with the Minister and Senator Douglas if there is any prospect of agreement. I want to repudiate the suggestion made by Senator Comyn and also by Senator Dowdall. Senator Dowdall suggested that I was speaking for a powerful all-devouring corporation as against the small man. To the extent that I am concerned from a partisan point of view at all, I am concerned solely with the question that where the railway company is put to absolutely unnecessary expense, the railwaymen have to pay for that. They have to earn that money before they can claim one penny wages. It is because of the manner in which the railway company were salted in the past by arbitrators for land acquired by them, that the Minister has to write down the capital of the railway company to-day to less than half of what it was. I do not want to have a similar state of affairs occurring now.
One of the effects of this proposal will be to make the Bill unworkable, and to place on the shoulders of the industry a burden that is absolutely intolerable. If Senator Comyn cannot make any more helpful suggestions on the question of transport than those we have listened to this evening, I suggest that he should go to one of the exempted areas and stay there until we have the Bill finally passed. His contributions to the Bill certainly have not made for lucidity. He admitted that he did not know the law on some points. He did not know that where a poor workman is concerned the arbitrator may, if he so desires, require security for costs. That is quite wrong, the Senator says. I do not want one law for the employer and another for the workman, and I think that what is good enough for the workman should be good enough for the man who owns a lorry and wants to sell it. The Senator says that he will support me enthusiastically if I move an amendment to that effect. I do not know that I want his support. I think that I should much prefer for the sake of having it carried if he opposed it. He has expressed great anxiety for the owners of transport vehicles who may lose their livelihood and who will not get their costs in every contingency, but he has expressed no anxiety for the man who, with almost five years' service, loses his livelihood and gets no compensation. He has not indicated that he wants to improve that position. If I moved an amendment in connection with that, Senator Comyn would be full of sympathy for him, but he would vote against it.
He often asked me to move amendments on certain other lines, but I found him getting up afterwards and voting against them.
I think the Senator is under a misapprehension. Name any one of them.
There seems to be an idea that there is here an inexhaustible source of wealth from which money can be drawn to compensate everybody who may have a claim, and to pay him costs, whether he can prove the claim or not. That is perfectly absurd. You are dealing with what is a semi-bankrupt organisation and you want to saddle them with conditions for which there is no precedent in law. Senator Comyn has not suggested any precedent, and he presumably knows the law. Why set up new principles of law here? A man comes along and asks to transfer his business to the railway company. The company offers him compensation. He goes to the arbitrator. The arbitrator says, perhaps, that he has been offered too much. He will only award him 50 per cent. of what he has been offered, and Senator Dowdall says that, even in these circumstances, we shall award him costs.
If that were the way that the Senator did his own business he would not be as successful as he is to-day. I should like to see that proposal put up to him if he were required compulsorily to acquire a competing margarine factory, if he offered £1,000 for that factory, and the arbitrator only gave the owner of the acquired undertaking £500. Senator Dowdall would still be asked to pay the costs of the man who had refused his offer. There is no reason in that; only blind partisanship or antipathy to the railway company could inspire a proposition of that kind. I put forward my amendment because it is the same principle which has been adopted in the case of the workman. It was good enough for the workman, and it should be good enough for the lorry owner.
If I might refer to the statement of Senator O'Farrell in regard to the manner in which I voted on the Railways Act, I may say that I have looked up the Official Report, and I find that on the Second Reading I voted against the Bill, and that I also voted for every amendment moved by the Labour Party.
You should not say then that I voted for the Bill. I opposed it then as I oppose this now.
In regard to the suggestion that a conference might be held I do not know whether it would get us anywhere. I would be prepared to consider an amendment to sub-section (2) of my amendment so as to provide that it would only operate where the application for the transfer of the licence had been made by the railway company or the tramway company. I am not prepared to agree to the giving of security for costs because I do not think it is good enough——
I merely copied the amendment.
I think it would go a long way towards meeting the difficulty.
On the other side, we have Senator Dowdall. It is not necessary for the Senator to bring in an amendment. What the Senator desires is what is in the Bill, which provides that costs shall be given for the benefit of the persons surrendering the licence. I thought that was the better thing to provide first, so as to ensure that the person would have a net sum, following the whole business, which would be his compensation, but it appeared on examination that the section was a bit too rigid and that the provision as to costs would, in fact, be an inducement to these people always to go to the arbitrator and promote litigation in that way. It is not at all impossible, as a general rule, that one of the companies may offer more than the arbitrator would award in order to avoid the trouble and expense of arbitration proceedings and, in fact, offering an inducement to licensees to promote arbitration proceedings might be doing them an ill turn instead of a good turn. Therefore I am disposed to amend the Bill on the lines of the amendment suggested, which says that the arbitrator may give costs if he thinks fit, having regard to the circumstances of the case and that it is in the interests of justice.
My view is that the arbitrator should always so determine the amount of costs and compensation as to allow the person losing the licence to have, at the end of the whole business, a net sum which would be fair compensation for pecuniary loss. If the amendment is inserted on this stage, I would be prepared to move an amendment on Report Stage to provide that sub-section (2) would operate only where the railway company had applied for the transfer, and not where the application had been made by the licensee.
I think that is the right course, because there is no doubt that the amendment is better than the section from every point of view.
Amendment agreed to.
Sections 56 to 58 inclusive agreed to.
Amendments 13 and 14 not moved.
(1) Every arbitrator appointed under this Part of this Act shall have power by notice in writing signed by him to summon witnesses and to require the production of books and other documents, and any person so summoned who fails to attend or refuses to give evidence before such arbitrator and any person who fails or refuses to produce any book or other document the production of which is so required of him shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.
(2) Evidence given before an arbitrator appointed under this Part of this Act shall, if such arbitrator requires, be given on oath (which oath such arbitrator is hereby empowered to administer) and any person who gives false evidence before any such arbitrator shall be guilty of perjury and punishable accordingly.
I move amendment 15:—
Section 59. To add at the end of the section a new sub-section as follows:—
(3) Such standing arbitrator shall if requested by any party to any appeal before him (unless he considers the request frivolous) and may without request refer any question of law arising in any appeal before him to the High Court for determination.
I move this amendment as I have been requested to do so. I do not think that I need take time in arguing it. Its object is to make it definite that there can be an appeal on a question of law to the High Court if either side asks for it.
When I saw this amendment, I adopted the device of asking those most competent to do so to give me an example of some question of law that might arise. I could not get such an example, and I do not think that the Senator could give me an example.
I have had the whole thing examined, and I do not see what question of law could possibly arise. I think that what is in the minds of the persons who are suggesting amendments of this kind is their experience in relation to another arbitrator appointed under another Act. That arbitrator had questions of fact to determine and, as Senators are probably aware, a constitutional point has been raised and the whole proceedings under that particular Act have been held up pending a determination of the constitutional point by the Supreme Court. In that case, however, the arbitrator had questions of fact to determine as well as to measure the compensation. In this case, that cannot arise. The sole purpose of the arbitrator appointed under this Act is to assess the amount of compensation. He has not to determine whether the licence should be transferred or not. The licence has been transferred; the business is stopped and the sole purpose of the arbitrator is to assess the pecuniary loss or expense of the licensee following on that operation,
It would not be possible that the meaning of the phrase "pecuniary loss" or the words after it, could come up?
It would not arise because it is there. The arbitrator is responsible for the interpretation of that. That is his job. Obviously, nobody can question what he does on that ground. That is a question as to whether the Act was properly drafted to give effect to the intentions of the Oireachtas or not but, in fact, the arbitrator acts as he believes to be within these terms of reference. There is, of course, the danger which an amendment of this kind might give rise to, that is, that a railway company or a tramway company which happened to find that it suited its interests could raise some point of law and, no doubt, with the aid of good lawyers, they would find some point to raise if the amendment were inserted and the whole thing might be referred to the High Court with, perhaps, an appeal to the Supreme Court. We might thus be waiting for a decision for two years and, meanwhile, the whole operation of the Act would be held up. That would lead to great difficulty.
That is the position in relation to another Act. I think that the decision of the court which would enable its operation to be resumed has already been delayed for two years, and it may be two years more before we get it. The position is such that we cannot even amend the law in order to get the thing resumed, although, in that case, the party concerned who is bringing the test case has died and is dead, I think, for a long time. Nevertheless, a decision has not been given. There would be unlimited scope for delay as a result of an amendment of this kind, and that is what I am anxious to avoid.
When this matter was raised with me, I advanced that argument myself. I am prepared to leave the amendment over until Report Stage, and, if I am unable to submit any case to the Minister, I will not move it. I should like to have it left over, because the matter was suggested to me by a lawyer who, presumably, had something at the back of his mind. If he has not, I have no case to make, but if he has, I will send it in writing to the Minister.
Amendment, by leave, withdrawn.
Sections 59 to 72 inclusive agreed to.
(2) When fixing the charges necessary to produce the standard revenue, within the meaning of Section 53 of the Railways Act, 1924, the Railway Tribunal shall take into consideration the manner in which every business to which this section applies is carried on, and may take into account the revenue which, in the opinion of the Tribunal, should be produced by the efficient and economical management of such business.
I move amendment 16:—
Section 73, sub-section (2). The words and figures "When fixing the charges necessary to produce the standard revenue, within the meaning of Section 53" deleted in lines 45-46 and the words and figures "In any review under Section 54" substituted therefor.
This amendment is really a drafting amendment. The section, as drafted, has been read to mean that the Railway Tribunal acted under Section 53 of the 1924 Act. The functions of the Railway Tribunal with regard to future revisions of railway charges arise under Section 54 of that Act, and the provisions of this section are brought into revisions under Section 54 so far as they apply.
Amendment agreed to.
Title agreed to.
Bill reported to the House.
Report Stage ordered for Wednesday, 31st May, 1933.
The Seanad adjourned at 6.55 p.m. until 3 o'clock on Wednesday, 24th May.