Memorandum by Reginald J Dawson (RH01)
OVERALL VIEW
1. I consider that the British regulatory system
is soundly based. There is room for disagreement about some of
the details, but operator quality, safety and environmental protection
are the appropriate criteria for obtaining an "O" licence.
When applying for their licence hauliers are made aware of the
high standards expected of them and that Traffic Commissioners
have power to act against their licence if they fall seriously
below those standards.
2. Self-evidently, disciplinary action against
an "O" licence can only be contemplated when an operator
has been shown to have breached the numerous regulations. Enforcement
was the subject of an Inquiry by the Transport Committee in the
last Parliament. No doubt the Sub-committee is aware of the 1995-96
Committee's Report[1]
and its 35 Conclusions and Recommendations. I support almost all
these and regret that so few of them have been implemented. I
understand that the Department has high hopes of a new Information
Technology system now being introduced, particularly in dealing
with the problem of unlicensed hauliers to which the 1995-96 Committee
devoted much attention. I have therefore ignored that serious
problem in this Memorandum.
3. In this context it is relevant to mention
criticism of Department of Transport enforcement in 1987 Report
by the National Audit Office.[2]
This was endorsed a year later by the Public Accounts Committee.[3]
DISCIPLINARY ACTION
BY TRAFFIC
COMMISSIONERS
4. Significantly improved enforcement activity,
though very welcome and long overdue, would not cure a pivotal
weakness of the system. The theoretical threat of serious action,
including revocation, against an offender's "O" licence
hardly exists in practice. This undermines the whole industry.
The majority of hauliers who attempt to observe the regulations
suffer from undercutting by the significant minority of deliberate
and persistent law-breakers who know that only in the most extreme
circumstances are they likely to suffer more than a short suspension
of a few vehicles from their licence.
5. This is far from an original observation.
Recommendation (16) of the 1995-96 Committee's Report read, in
part:
"We believe that Traffic Commissioners should
generally be stricter towards offending operators and readier
to revoke licences even though this might drive some operators
out of the system altogether."
6. Not only has that been totally ignored—precisely
the opposite has happened. The Committee had found the 1995-96
figure of 161 revocations inadequate. Yet in 1996-97 this figure
fell by one third to 115. Revocations in 1997-98 (136) and 1998-99
(129) were still below the total which the Committee had implicitly
criticised. (These figures are taken from the Traffic Commissioners'
Annual Reports to the Secretary of State).
7. It is more difficult to compare lesser
penalties, though the number of licence suspensions shows a similar
trend to that of revocations. But week after week the haulage
magazines continue to report many cases of Commissioners giving
serious or persistent offenders the "second chances"
which the 1995-96 Committee criticised.
8. That criticism was not new. As far back
as 1978 the Report of the Foster Committee[4]
which examined the "O" licensing system expressed concern,
in paragraph 8.102, that Commissioners might be too lenient. In
1989 the Department invited John Palmer, then a recently retired
Deputy Secretary, to report on Traffic Commissioners and Areas.
His Report[5]
found continuing grounds for Foster's concern and that "if
anything Commissioners have become less severe and not enough
weight is given to road safety" (paragraph 5 of Management
Summary). He added (paragraph 3.11) "there is a tendency
to weight the scales too much on the side of giving another chance
to the operator as against the interest of road safety".
9. In the 22 years since Foster the only
significant relevant change has been the designation in 1992 of
one Commissioner as Senior Traffic Commissioner. This was aimed
at reducing the lack of consistency between Commissioner's decisions,
which Palmer had criticised. I know from informal sources that
many in the Department hoped this would lead to greater strictness.
But the figures in paragraph 6 above demonstrate that this has
not happened.
THE FUNDAMENTAL
PROBLEM
10. Attempts to introduce stricter penalties
have to take account of the Traffic Commissioner's legal status.
He is not a civil servant. (The masculine pronoun is appropriate
here—in nearly 70 years there has never been a woman Commissioner).
Each Commissioner is an independent legal tribunal who holds office
until the age of 65. He can only be removed for "inability
or misbehaviour".
11. This quasi-judicial status has historical
roots dating back to the 1930s when the carriers' licensing system
had totally different aims. Then Commissioners often had to decide
not only between competing hauliers for particular types of traffic
but also to consider objections from railways and canal operators.
It was thought desirable to insulate these decisions from ministerial
influence. When "O" licensing was introduced in 1970
it ran in parallel with a restricted form of carriers' licensing.
It was convenient for everyone to leave Commissioners responsible
for both systems, and this continued after carriers' licensing
was abolished in 1971.
12. The Reports of the 1995-96 Committee
and those by Foster and Palmer were only the most public criticism
of Commissioners' laxity. To my personal knowledge many senior
Department officials and, on at least one occasion, a Minister
have expressed their concern on this matter to the Commissioners.
Yet, as the figures above show, all attempts at persuasion have
been totally ineffective. This cannot be attributed to the foibles
of particular Commissioners—there have been about 100 different
individuals in the 30 years of "O" licensing. The system
itself is at fault, and will have to be changed if the present
situation is not to continue.
POSSIBLE SOLUTIONS
13. Palmer considered two options:
(a) to use for the first time the law which
provides for Commissioners to act "under general directions
of the Secretary of State". Palmer rejects this on the rather
vague grounds that "it seems to be a dead letter", and
that there might be difficulties in drafting such directions (paragraph
3.14); and
(b) to remove Commissioners' independent
status and transfer the "O" licensing function to the
Secretary of State. Palmer rejects this, assuming that Ministers
would not wish to take over the responsibilities, with the attendant
risk of being asked to intervene in individual cases (paragraph
3.16).
14. I am unconvinced by Palmer's dismissal
of the first option. It should be possible to draft general directions
which would have at least some positive effect on the situation
without impinging on Commissioners; independence to decide individual
cases.
15. At the time Palmer reported I agreed
with his rejection of the second option. But the lack of any progress
in the decade and more since then convinces me that this option
should be more closely examined. The reasons for Commissioners'
quasi-judicial status to apply carriers' licensing in the 1930s
are absent from the totally different "O" licence system.
At the time of the change-over in 1970 it was convenient for all
concerned to use the existing mechanism. If it were producing
the desired result that consideration would still apply. But report
after report shows that it is seriously wanting. Palmer admits
(paragraph 3.16) that he did not pursue the option of transferring
the function to the Secretary of State.
CONCLUSION
16. "O" licensing is a web which
draws together the various threads of haulage regulation. The
Traffic Commissioner is the spider at the heart of the web. What
the web achieves depends to a large extent on how he deals with
those caught in that web. I hope the Sub-committee will decide
to examine the problem of lax penalties and in particular to consider
both of Palmer's options.
17. Needless to say if the Sub-committee
thinks I could be of further assistance to its Inquiry I would
be happy to expand on this Memorandum, either orally or in writing.
Reginald J Dawson,
former Head of Road Freight Division,
Department of Transport
28 January 2000
1 The Adequacy and Enforcement of Regulations
governing Heavy Goods Vehicles, Buses and Coaches Fifth Report
by House of Commons Transport Committee, 17 July 1996. Back
2
Department of Transport: Regulation of Heavy Lorries National
Audit Office 23 July 1987. Back
3
Regulation of Heavy Lorries Eighteenth Report from the Committee
of Public Accounts 3 February 1988. Back
4
Road Haulage Operators' Licensing-Report of the Independent
Committee of Inquiry Chairman: Professor Christopher Foster
(HMSO November 1978). Back
5
Traffic Commissioners and Areas-Report to the Department
of Transport by John Palmer C B-(Department of Transport September
1989). Back
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