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The Forgotten Order
Page 139
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ALMOST unnoticed among the odds and ends ot recent legislation has been Statutory Instrument _No. 98, entitled the Road Haulage and Hire (Charges) (Revocation) Order, 1954. It revokes two other Orders which the Ministry of Transport have kept clean and garnished like a museum that nobody bothers to visit.
The first Road Haulage and Hire (Charges) Order was imposed in 1942, during the war, as part of the inevitable organization and restriction of the country's transport. Any customer called upon to pay more than 71 per cent. above what would be a "fair and reasonable charge v in October, 1940, could invoke the Order and hope to be awarded a refund.
Within one month of receiving his account, he had to write to the Ministei of War Transport or to a Licensing Authority (described in most war-time Orders as a Regional Transport Commissioner). The Commissioner, or any other person appointed by the Minister to consider the case, could reject the complaint if it seemed to him to be flimsy. Otherwise, he was required to call upon a panel of assessors for one representative of the road haulage industry and one representative of either trading or agricultural interests. The subsequent decision of the Commissioner or his equivalent would be binding.
There was at the time hardly any real opposition to the passing of the Order. It followed fairly closely the recommendations of a committee appointed by the Minister and including hauliers. The necessary machinery was set up with scarcely a murmur of dissent. Within a few months nearly 400 assessors were approved, and the various organizations called upon for the purpose continued to make the necessary nominations right down to the date of revocation.
"Proof to the Contrary" There may have been some perplexity about the scope of the Order. It was not always easy to determine what was a "fair and reasonable" charge in October, 1940. The Order was perhaps a little otiose and less than helpful in suggesting that " regard shall be had, inter alia, to any charges actually. made in that month." Even the increase of 71 per cent. was considered appropriate only "in the absence of proof to the contrary."
Although the Order occupied no great space on paper, it must have looked at first a likely field for the cultivation of a reasonably lush crop of case law. A few traders did take advantage of the opportunity to query before a tribunal the rates they were charged for haulage, but for most of the time the Order has been a dead letter.
It is hard to understand why this should be so. Traders would not suggest that the Order has been a deterrent, the existence or threat of which has been sufficient in itself to keep rates down. Had this been so, the revocation would have aroused protests, and there would already have been complaints of rising rates. Hauliers might claim more plausibly that their charges are at all times so reasonable as to make the Order unnecessary. This would be convincing if there were evidence that more use was made of the machinery when there were widespread complaints of overcharging by British Road Services.
At the end of 1946, an amending Order put back the basic date from October, 1940, to July, 1939, and raised the then appropriate percentage from 7i to 55. This might have seemed like sharpening the knife for the rate-cutter, but it had little effect upon the use made of the Order. Even when traders came to realize that they were paying more to B.R.S. than to their former haulier, they preferred to protest in almost any other way. Some of them may have been put off by supposing that the Order did not apply to B.R.S., but this could scarcely have been the general opinion. It seemed reasonably clear that this limitation of the Order would not come about until the British Transport Commission had completed their charges scheme and B.R.S. came within the shelter of the Transport Tribunal.
The most likely explanation for the neglect of the Order is that there was nobody with a permanent interest in promoting its use. The willingness of several hundred hauliers, traders and farmers to sit as assessors may have been because they rarely expected to be called upon to form a panel. They had no incentive to publicize their appointments, and many of them would have resigned had there been any substantial growth in the number of applications from road haulage users.
Specific, Direction The Licensing Authorities may have had no affection for the Order. Most of them have refused to consider rates questions in the traffic courts, and their policy has not changed much in spite of the specific direction in the Transport Act, 1953, that charges ate one of the things they should keep in mind when weighing objections.
There is such a thing as an uneconomic rate, and the Licensing Authorities are aware that in a system of free enterprise the provider of transport is generally in more need of protection than his customers.
There may have been reasons for putting the basic date back to July, 1939, but it is hard to understand what they were. Many transport operations today cannot easily be compared with anything that happened before the war, and it needs much research to decide what rates were " fair and reasonable" 15 years ago. The costs of operation have risen far more than 55 per cent.. and to adopt this figure as a fair increase on pre-war rates is absurd now, eveh if it were more reasonable in 1946.
It might have made sense to incorporate the Order in the machinery set up under the TransportAct, 1947. The basic date could then have been some time after the war, and the traders who complained at the prices they had to pay following nationalization would have had an up-to-date yardstick with which to belabour B.R.S. The process would have been tedious at first, for individual traders would have had to lodge protests against specific accounts, but little by little the panels would have accumulated records sufficient to provide either an indictment or a justification of B.R.S. charging policy.
On the whole, it was sensible to revoke the Order. Traders have rarely accused the haulier of fleecing them, and can look after their own interests without statutory intervention. The shortage of transport which continued for some time after the war has now disappeared, and there is nothing to stop a trader using his own vehicles if he thinks he is being over-charged.