Thursday, 27 June 1985
Seanad Eireann Debate
Mr. M. O'Toole: Does this qualify all existing merchandise licences whether they were granted under the 1933 Act or the 1945 Act? Are all merchandise licences being renewed covered by the section? I know of a number of short distance licences that apply from post offices for a radius of ten miles on Achill Island. Those licences cannot be used outside that radius. Are they all covered under this section? Will the Minister tell us if any of the existing licences are being deleted under this section?
Minister of State at the Department of Communications (Mr. Nealon): No. It is hoped that licensees will qualify under this so long as they retain their qualifications. All existing licences will be in under  this but, of course, they will have to retain their qualifications.
Mr. M. O'Toole: In the event of ten mile radius haulier, or an Achill Island haulier, applying for one of the new licences, will he have the same status as a haulier with a 32-county international existing licence?
Mr. Nealon: Yes. The restricted areas are being done away with so, in fact, he can get a licence for the entire country. If he qualifies for an international licence he will get one also. The restricted areas are being done away with under the Bill
Mr. O'Leary: May I ask the Minister whether he would like to comment on what appear to be the new criteria for the issuing of licences? Section 2 (c) states that every application shall contain such information as will satisfy the Minister that the applicant complies with the requirements as to good repute, sound financial standing and professional competence referred to or specified in regulations under the European Communities Act, 1972. Am I correct in saying that the sole criteria to be used with regard to the future application of licences are the questions of good repute, sound financial standing and professional competence? This appears to have replaced all the various other criteria which were to be applied.
Mr. Nealon: Other things such as quality of the vehicle and things of that nature may be taken into account. These are, in fact, the regulations as existing since 1978 in EC law. This very much conforms with Community law.
Mr. O'Leary: In those circumstances I would like to pursue the matter a little further. Is the Minister satisfied that Irish  carriers will not be placed at a disadvantage compared to European carriers on the question of transport? What is the position with regard to the transportation of Irish goods from Ireland to the Continent of Europe? Are we now introducing a system which will penalise Irish carriers unfairly and will bring about a situation where the cost of carrying goods to Europe is an impediment to the development of industry and commerce here? Will the system obstruct the principle of convergence, which was referred to yesterday by the Taoiseach, while examining the position of the European Community? Would the Minister put the new criteria in that context for us?
Mr. Nealon: There is nothing relevant to that in this Bill. There are no problems as far as Irish hauliers are concerned. There is no impediment against them on the international circuit. These are covered by bilateral and multilateral agreements so that, in fact, we can ensure through the various arrangements we make with other countries that we get equal treatment. I have heard this discussed at the Council of Transport Ministers. While it is an extraordinarily complicated and technical matter, generally speaking, our people are extremely happy that we suffer under no impediment and that we face all of this competition on an equal basis.
Mr. O'Leary: I wonder whether the Minister would like to comment on to what extent other transport companies operating from the Continent of Europe will be able to operate in spite of low restrictions in this country? Will it be possible for European competitors of all transport industry competing for the transportation of goods between Ireland and the Continent to use bigger lorries than would otherwise be used on our roads? What will be the effect of these on the economics of the Irish transport industry and on the road maintenance programme of the Government?
Mr. Nealon: All hauliers are entitled  to operate under Community law of free circulation. There are bilateral and multilateral agreements. There are certain restrictions as regards weight, but that does not arise under this Bill we are dealing with here. There are restrictions which various countries have and various efforts are being made at international level to get a uniform common system which is naturally not possible. There has been an ongoing situation for the past 25 years which Ministers for Transport are trying to sort out. As far as this is concerned, there are regulations which give free access to hauliers on an EC basis. There are certain restrictions as regards weight, but that does not arise here.
Mr. M. O'Toole: Surely our national hauliers are going into a new dimension. Senator O'Leary is quite right in saying he will pursue this further. I want to pursue it a little further. Our traditional hauliers have been pegged to radius counties within a certain radius and provinces and, indeed, to the Twenty-six Counties heretofore. Now the new dimension will be that our national hauliers will be going into the European Community to compete against traditional hauliers that have been competing and travelling the length and breadth of Europe. They have the type of articulated truck that is suitable to travel the whole of Europe and, indeed, the eastern bloc. In addition to the language barrier and the unladen weight barrier, as a result of this Bill our traditional haulier will now have to compete with the international haulier who knows the language and the geographical terrain of the country and who has the personnel, trucks, organisation and back-up services all geared for international haulage. For the first time we are breaking into that type of haulage and we are not accustomed to it. We will not be able to compete in unladen weight or in prices. The likelihood of getting a return load for an Irish haulier is a lot less than it is for a haulier from Spain, Germany, France or from any other  State. The Irish haulier has to depend on whatever type of imports might be coming into this country but a continental haulier can pick up a load in one part of Europe and have a return load as he has the organisation, the experience and the geographical spread.
Mr. M. O'Toole: I will leave it. If you apply for an international licence, does that international licence cover you for the national scene as well? There are two types of licences. You can apply for a national licence or an international one. If you get a national licence you cannot drive abroad, but if you apply for the international one, can you compete both internally and internationally?
Mr. Nealon: While I will answer that, it certainly does not come under the Bill as far as the Continental situation is concerned. There is a large number of hauliers already operating extremely successfully on the Continent, who have all this expertise at this moment and who are operating extremely successfully. What would happen under this Bill is that extra people would get licences and they, if they get an international licence, would be entering in that field as well. But it has already been very well proved by our own hauliers who are operating there that they can do so very successfully. Nothing will take away from their activity but there will be extra people coming in who, I am sure, will be equally successful and who will make it more difficult for the continentals but not for our own people.
The international licence is the extra dimension licence. If a man gets an international licence he will be covered for national work, but if he has a national licence without the extra dimension of an international one, as the term indicates he will be confined to national activities.
every application shall contain such  information as will satisfy the Minister that the applicant complies with the requirements as to good repute, sound financial standing and professional competence referred to or specified in regulations under the European Communities Act, 1972.
When one looks for a certificate of competence, having passed the AnCO exams, the last question on that certificate asks if one is of sound financial standing, has entered any agreement with a bank or has entered into any financial arrangement with creditors. I would not know of anybody in the road haulage business who would not have an arrangement with a bank or with hire purchase companies or with leasing company. There is no way the person could sign that form realistically because he would have made a deal already with a hire purchase company or a bank to purchase his vehicle. What is the situation regarding, not the question of sound financial standing, but the actual question on the certificate of competence?
Mr. Nealon: I appreciate the point the Senator is making and I will take note of it. In practice, and this has been operating in the past, it has never given rise to any difficulties except where the person involved was not of sound financial standing. It was, of course, extremely useful in that respect. What we have here is the previous experience the Senator is talking about but it has not given rise to any difficulties except where the person was not of sound financial standing. In other words, there was no difficulty for the person who was of sound financial standing in meeting the criteria and getting through as far as his licence was concerned. Naturally, and obviously this is the purpose of it, it did create difficulties in a limited number of cases where people were not of sound financial standing. Of course, that is the value of it to the general haulage business and to the general public as well.
Mr. Lanigan: The fact is that anybody who has a signed arrangement with a  bank or a hire purchase company and who then signs the declaration form will be making a false declaration. The provision gives an out to the Department at any stage, irrespective of a person's standing financially, to revoke his licence because he has made a false statement. The Department will say that that is not what they mean, but it is stated quite categorically that an arrangement made with a creditor or with a financial institution disqualifies an applicant.
Mr. O'Leary: I presume what is meant by an arrangement would be an arrangement of the kind mentioned in the Companies Act, an arrangement with creditors, meaning that you have come to an agreement with creditors for them to write off some of their debts to you. An arrangement does not mean one has done a deal with a bank. It means that there is an agreement that they would forego some of their liabilities if one was not in sound financial circumstances. Perhaps the Minister would confirm that that is what is meant by an arrangement, rather than that one borrowed money. I presume what is meant by an arrangement is that one has an agreement with a financial institution or with creditors for them to forego part of their debt so as to retain the financial viability of the operation. That is what an arrangement is. It is not just an agreement.
Mr. Lanigan: I thank Senator O'Leary for coming in on behalf of the Minister but while one can play around with words for as long as one wishes the fact is that the question is asked and the applicant has to sign a guarantee that he has not made a financial arrangement with anybody. If one walks into a bank and makes a financial arrangement, that arrangement may not be what one thinks it is but it is what it says and that is important.
Mr. O'Leary: It may be that my understanding of the words “financial arrangement” is, in this context, incorrect. If that is so, I share the Deputy's point of view and I share his concern. If, however, the  Minister would confirm that a financial arrangement in this context means a financial arrangement in the technical company law sense, then for a person to borrow money from a bank and to be in the process of paying it back in the normal way is not a financial arrangement within the meaning of the Bill.
Mr. Nealon: We are dealing with a form that is not outlined in the Bill as such. It is an administrative form, organised by the Department in connection with this Bill. I take on board the various points which have been raised and I will have them examined with a view to seeing if there might be another form or if the arguments made are valid and if there should be some change made. As I understand it, this particular form was produced in the usual way, after a very legalistic examination. It was considered to be the most appropriate form. It is not in the Bill as such. It is an administrative matter for the Departments. I listened carefully to the cases made and I will certainly have them examined to see if there should be a change in that administrative form.
Mr. M. O'Toole: I am sure the Minister is well aware that in the personnel involved in haulage throughout the length and breadth of this State since the 1933 Act, a lot of traditional hauliers felt that when this type of additional licence would be issued, giving a semi liberalisation of haulage, some compensation or protection would be forthcoming to existing hauliers. Would the Minister state whether it will be easy to come by a new national or international licence in the future? My interpretation is that if one is well got and has a fair type of statistical presentation on one's application form that will be the requirement for getting one of the new licences. If they are going to be given out  ad lib, as might be the case under this new legislation, the existing hauliers who depend on their haulage for a livelihood will have their trade severely damaged by fellows who will get into the haulage business. Firms who are doing their own haulage may now apply for international licences and may compete against our own traditional licence holders. Will there be any protection for the existing hauliers on the enactment of this legislation?
There is a great fear in the minds of hauliers at present that these licences will be given out by civil servants, that they will be numerous and that you will have the Johhny Come Lately who knows nothing whatsoever about haulage going into this field of operation, who will no doubt damage the status of Irish hauliers internationally which will have a damaging effect on our existing fleet of traditional experiencd hauliers. The Minister said most Irish hauliers are successfully doing business abroad. If that is the case, will the Johnny Come Lately who will be issued with licences ad lib come into the market, unable to give a service, and complete with our traditional hauliers. This may reduce fares and tonnage rates right across the board. I would like the Minister to comment on the new licences and how they will be issued. Will they be issued on demand or determined by the amount of work that cannot be carried out by the existing system? That should be the criterion for issuing new licences. Where there is a shortage of proper international traditional licensed hauliers and they are unable to do the job effectively because of an overload of work you may have to put in one or two additional hauliers to take up that slack. Only in these cases should additional licences be granted. I would ask the Minister to make a statement here on that issue. It is an important issue in the minds of existing hauliers who have been in the trade since 1933.
Mr. Nealon: There is no doubt that this is a liberalisation move and that is accepted. This will mean more licences.  But that should not result in less work for licensed hauliers. The situation was pretty chaotic with a vast number of regulations, some being adhered to and others not being adhered to. Liberalisation first took place in 1971. At that stage own account hauliers had 80 per cent of the market. That has been substantially reduced since the liberalisation and the development of the professional hauliers with the result that own account hauliers has decreased to the region of 60 per cent. Our belief is that with this further very badly needed development, professional hauliers will gain a further slice of the market which is being handled on an own account system. There will be extra licences but the granting of new licences will have to conform to the regulations specified under the European Communities Act, 1972.
It is not a question of filling in a form and getting a licence. It is recognised that there are various interests on all sides and there will be a readjustment period as far as licensed hauliers are concerned. Because of that, and as a fair compromise, the new licences will not be available for a two year period. The overall reaction of hauliers to this legislation, while there are reservations, has been pretty good. It is felt by everybody that this type of legislation is needed because there is a great deal of unlicensed haulage taking place. The situation should be clarified when the Bill is in operation. With a new legal structure for which everyone has been asking, there is no doubt that professional hauliers will be able to win over, through their competence as professionals, a much larger slice of the own account haulage that is now being carried out by the various companies throughout the country.
Mr. Lanigan: The Minister said and we all know, that there is a huge amount of illegal haulage going on. For the Minister to admit that his Department are aware that illegal haulage is going on is an indictment of the authorities who allow illegalities to occur. There are many facets. There are illegal radio stations which  nobody bothers about. The Minister admitted that he is aware that there are illegal hauliers now operating. One of the problems is that nothing has been done about it. If something had been done by the authorities to stop this illegality, there would be very little opposition to the liberalisation which is taking place and which, basically, will give to illegal hauliers, if they get a certificate of competence, the same rights as somebody who has been adhering to the law throughout the years.
I ask the Minister to comment on that and to specify what the situation is regarding own account licences. In many cases own account business has been carried out by limited companies. Can limited companies obtain an own account road haulage licence, or will they have to employ somebody who has a certificate of competence in each firm considering going into own account haulage? If somebody from that firm who has a certificate of competence leaves the company, do they have to employ somebody who holds a certificate of competence? The Bill does not specify that an individual in the own account company has to have a certificate of competence.
Mr. Nealon: The first point is that obstruction of the liberalisation by a number of vested interests — which would include hauliers themselves — generated the conditions that led to illegal hauliers. We are now regularising the whole thing. This will, we hope, get rid of illegal hauliers. Similarly the Local Radio Bill, when introduced, will be the vehicle through which pirates can be got off the air. We are taking action at this stage. Own account applications are treated in the normal way. They have to meet the various criteria. If such people obtain a licence then they can carry for reward like everybody else. As far as the situation of the manager is concerned there is no specific reference to own account applications. There is simply a reference to applications by any type of applicant and the conditions are laid down in the later sections of the Bill.
Mr. Nealon: Yes, the same as any other company, even as a professional operator. A professional haulage company which is not owned by a single person has to have a designated person who would be the manager. We will be coming to that in later sections of the Bill.
Mr. M. O'Toole: The first liberalisation took place when we allowed livestock and grain to be hauled. A lot of livestock was going on rail at that time and the same applied to grain, manures and other merchandise but at the moment there are no grain or cattle wagons available. If you wanted to send a wagon of cattle from one point to another you could not get a cattle wagon. CIE have not got a cattle wagon. The amount of merchanidse travelling by rail at the moment is negligible. That is one of the things liberalisation brought about. It took trade away from CIE, both in livestock, grain, manures and so on. The own account people who had to get their merchandise to and from their plants and mills had to get their own fleet.
No attempt whatever has been made by the Department of Justice in the past few years to rectify the situation with regard to illegal haulage. I believe that under the new legislation it is not the intention to have the personnel available for any surveillance of illegal haulage. I have seen nobody from the Department of Justice who has been interested in illegal haulage over the past number of years. I hope the Minister will give me some assurance that in the future when this Bill is enacted we will have the personnel to do the job. At one time we had a fleet of Garda squad cars to wipe out illegal haulage, but they are not on the road today. That was ten years ago. We had a fleet assigned to the different locations. Is the Minister going to re-introduce these squad cars for that purpose alone under the new Bill? If he is not we  will have a further liberalisation that will only damage the existing haulier. I see no protection whatever in this Bill for the existing haulier.
Liberalisation will not help existing hauliers. They have their tradition and they have their organisations built up. They have their expertise and a big capital investment in trucks and trailers. From the tone of the Minister's speech it will be very easy to get an international or national licence under the new system, and I will be advising my people to make application immediately. They are there for the taking. This certificate of competence is just a free for all and will be detrimental to existing hauliers. They will have no protection whatever and no compensation. We will have a type of haulier coming on the market whom we would not like to regard as the Irish haulier because he will not have the expertise or experience required for the haulage business either nationally or internationally.
Mr. O'Leary: I would like to support the Minister's liberalisation which is referred to and in fact introduced by the section which we are now dealing with, section 3. The position is factually as stated by Senator O'Toole, but that is the way it should be. Existing hauliers should not be protected. The competition which will result from the implementation of this Bill, and section 3 in particular, should be welcomed because it will lead to a better quality of service. It is up to the Minister to ensure that the criteria are applied sensibly. There will be a limitation on the number of people who will be able to qualify because, obviously, if they do not have the right equipment they will not qualify, particularly for the international licence. I presume the Minister will indicate to us that a more stringent requirement will exist in respect of the actual equipment in the case of an application for an international licence then in the case of an application for a national licence. I would expect that to be the case but, subject to that, the more competition we have in this area the better.
 I have sympathy, of course, for the existing hauliers but it was never intended that this would become a system whereby licences issued by the State should be worth money and be sold by one person to another. That was never the intention of the legislation and we have got to be careful of that kind of a licensing situation in the future, and not create a situation where licences issued by the State become in themselves valuable assets. This is what has happened over the years in the haulage business and it is not in the long term interests of the haulage business or the consumer that that should happen. Section 3(1) (a), (b) and (c) specifically outlines the holders of existing licences and certificates of one kind or another and extends to them the facility of trading in their licence for either a national or an international licence. I support section 3 and the Minister's attitude to it.
Mr. Lanigan: I want to make a few comments on what Senator O'Leary said. Of course there is no reason at all why the State should issue licences for road haulage. The only reason they were brought in in the first place was to protect CIE. They did not protect CIE because CIE were not able to protect themselves. There is absolutely no reason, except a bureacratic reason, why we should have road haulage licences at all. What we should have are road vehicles which are adequately taxed, adequately insured and adequately maintained and let the marketplace dictate the number of vehicles on the road. Therefore, there is no reason why the State should be involved in the issuing of licences.
Having said that, I cannot agree with the Senator's assessment of the state of the industry. He states that the consumer will be protected by the liberalisation of the haulage industry. The Senator must not be reading the advertisements put in by hire purchase companies and garages for repossessed vehicles over the past number of months. People in the haulage business, whether they are licensed or unlicensed, cannot afford to keep their vehicles. The only people who are really  benefitting are the banks and the hire purchase companies. The hauliers, whether legal or illegal at present, are getting rates which they were getting in 1978. They are running vehicles which are costing ten times more at running costs which are 100 times more than they were in 1978. Liberalisation will not help the consumer. If too many licences are brought on the market the rate will go down, people will go out of business and there will be an inadequate haulage system.
Mr. Nealon: Senator O'Toole raised the question of what happened in the livestock industry after the liberalisation in 1971. At that period a vast amount of livestock was in fact being carried illegally. Then you had decontrol. There was a rush at that stage of many people into this business but the experience since has been rather illuminating as far as the possible effects of this Bill are concerned. In fact most of the livestock carried now has returned to the professional hauliers. The business has gone back to the professionals. Senator Lanigan just now enunciated fairly clearly the guiding principle behind the Bill, that quality should dictate. There certainly will be licences available for people who will have the competence and the financial standards and, of course, there are very strict regulations as regards the standard of the vehicles. This is governed by an EC regulation operated here by the Department of the Environment.
Senator O'Toole and Senator Lanigan raised the question of the enforcement of the new regulations when they are introduced. On Second Stage Senator Lanigan made various suggestions. These are still being considered but I can assure the House that this Bill, which will we hope become an Act very soon, will be strictly enforced. There is absolutely no point in making new regulations if they are allowed to go by default. There will be strict enforcement of the regulations. The points raised by Senator Lanigan on the Second Stage debate are being  considered. Those points relate to the policing that might be introduced.
Mr. M. O'Toole: Will there be any identification on the vehicle, under the new licence, that will be visible to the gardaí or indeed to anybody so that they will be able to identify these trucks in transit rather than holding them up at a check point to interview the driver to see if in fact he is a merchandise licence holder at all? There was an old system where a plate was attached, but it was not visible at a distance. Will there be any identification that will be visible to most people so that everybody throughout the State will know that this is one of the new international or national licences under the new legislation? There should be something that would be identifiable at a long distance to enable the Garda and for other merchandise licence holders to identify their own counterparts.
Has there been any discussion with the Northern Ireland people who seem to have an advantage in hopping across the Border? They have cheaper diesel, cheaper tyres, cheaper running costs, cheaper trucks and they are doing a lot of internal haulage here. Is there any discussion taking place with the Minister's counterpart across the Border in connection with this type of in and out haulage from the Six Counties?
Mr. Nealon: The present regulations, as Senator O'Toole pointed out, involve the carrying of a plate and also the driver has to carry a copy of the licence. There is nothing in this Bill which suggests any change but I note very well and I am impressed by the points made by the Senator in this respect. I will ask for them to be examined because obviously that would facilitate the people who are responsible for enforcing the law and would be beneficial. Northern Ireland people carrying goods are subject to the same laws as people within this State and if they are carrying illegally, or not qualified to carry here, they are subject to the laws just as people are here. SECTION 4.
Mr. Lanigan: Again it comes back to this question of the own account. The Bill states that the merchandise licence shall not be transferable. It states that a merchandise licence shall state the name and address of the holder and the registration number of each vehicle. If an own account person who is the manager of a firm and he has a certificate of competence himself, am I correct in stating that when he leaves the company have to advertise and employ a person with a certificate of competence? How long will it take before a licence will be issued to the new man for each vehicle involved?
Mr. Nealon: We are not dealing with own account. We are dealing with a person looking for a licence as such, let it be a professional haulier, or an own account or a single individual. There is no regulation in this for own account people. It is for someone looking for a licence, a company, or a partnership, or whatever it is. There has to be a designated person. The designated person, the manager or whoever it is, gets the licence and when that person is leaving there are transitional arrangements. We will be dealing with those in another section. This also covers the kind of difficulty which might arise in a family situation where a husband might die. A transitional period is also covered.
Mr. Lanigan: Under section 4 where is it covered? What arrangements can be made under section 4? Where you have a change over, do the firms involved have  to take their vehicles off the road? If they are carrying their own account materials, is it not likely that they might backload? Will we have a fleet of people out on the roads trying to check up on whether these own account people have certificates of competency for the managers involved at all stages?
Mr. O'Leary: I have a series of questions to ask. They relate to section 4 and they are interrelated with section 5 but I think they are properly asked under section 4. Section 4 seeks to substitute a new section for section 14 in the principal Act. Section 4 of the Bill says “Every merchandise licence, being a national road freight carrier's licence, shall entitle the holder...” I want to emphasise the word “holder”. That is the person who is entitled to carry on a merchandise road transport business in the State. Take a limited liability company operating transport. I understand from the Minister, from various answers he has given to Senator Lanigan and other speakers, that it is a designated person within that company who is going to be the holder of that licence. It might be the secretary of the company or somebody who is a director of the company. The person who is going to be held legally responsible is the holder of the licence rather than the company. Look at that and compare it with the revocation of the merchandise licence dealt with in the following section. Under (b) it says “on the ground that the holder has been convicted of an offence”. It talks about the holder. In the case of most offences relating to motor vehicles compliance with the law is mostly the responsibility of the registered owner of the vehicle rather than anybody else.
We have here a situation where somebody is convicted of breaking some condition of the licence, or convicted of carrying too much weight, or convicted of having the vehicle in a dangerous condition, or convicted of not conforming with some other statutory obligation. It is the intention of the Minister  that that would be one of the circumstances in which the Minister could consider the revocation of the licence. It is right and proper that that should be the case, for example, if the vehicle was found to be on the public road uninsured that should come within the ambit of the Minister to decide that the holder of the licence would no longer be a suitable person to operate an international or national road licence. In the case of an insurance problem it is not the holder of the licence that would be convicted but the registered owner of the licence who may not be the same person as the holder of the licence. The holder of the licence and the registered owner may be two different people. The registered owner could be convicted of a string of offences but the holder of the licence would not be convicted of any offence.
Unless there is some other provision in the Principal Act with which I am not familiar — if there is, the Minister will let me know — that links the two of them, the Minister should consider making it an obligation that the holder of the licence should, for the purpose of the Road Traffic Act, be considered the registered owner of the licence and should be expected to conform with the Road Traffic Act and all other statutory requirements in every respect in his or her personal capacity.
Mr. Nealon: To cover the various points raised by Senator Lanigan, if the proprietor of a haulage business has notice of a change then he must arrange to get a new manager in good time for that. If a manager leaves suddenly without giving any appropriate notice the problem of the difficulties that may arise there is something I will have examined. While it would be possible to take a lenient action in that case and allow a reasonable time, there may be considerations that there should be some specific provision for and I will have that point examined. Section 12 covers the case of emergency where we have death, physical or legal incapacity. I do not think legal incapacity would cover the point made  by Senator Lanigan as I myself thought it would. That covers what happens in those cases. Section 5 (c) covers the case where he continues without having a designated manager. The licence can then be revoked where there is not a designated manager.
Mr. O'Leary: Would the Minister consider the points I have made? There appears to be a distinction being drawn between the holder of the licence and the registered owner of the licence. The holder of the licence being a different person from the registered owner need not necessarily be held responsible for the road traffic offences, including the non-insurance of the vehicle. As a result of that the holder of the licence would not be responsible and it would not be open to the Minister to revoke a person's licence for the flagrant violation of these very important provisions.
Mr. O'Leary: In section 4, if we look at line 8 it says: “Every merchandise licence, being a national road freight carrier's licence, shall entitle the holder...” I am asking the Minister whether he should re-define the word “holder” to include the registered owner, whether they should become one and the same person for the purpose of marrying together the duties and responsibilities under this Bill which devolve upon the holder of the licence and the duties and responsibilities under the Road Traffic Act which devolve on the registered owner of the vehicle. That is the point I am making and it arises because this is a section under which we are deciding that the person who shall be entitled to carry on the business in the holder.
Mr. Lanigan: Just to reinforce what Senator O'Leary said when he dealt with section 14 on “penalties”, it does not mention the holder at all when referring to penalties. There are no penalties for the holder of the licence in that section.  It talks about “Every person who carries merchandise in contravention of this section...” If the owner of the vehicle is carrying the material surely there should be a penalty on the holder of the licence as well as — that being the own account situation — the owner of the vehicle. It is to the owner that the penalties apply and not to the holder. There is a double problem there as between the owner and the holder.
Mr. Nealon: The present legislation does not require a licensee to own his or her own vehicle. The points made by Senator O'Leary and Senator Lanigan merit consideration. I take the point made with regard to section 4 and I will consider it. Legislation does not require the licensee for a variety of reasons to own the vehicle but it merits consideration.
Mr. M. O'Toole: In connection with the points raised by Senator O'Leary with regard to a licence in a family unit where the holder of the licence is the husband in that family and in the event — and it is not too uncommon today — that the husband takes off at any time with his merchandise licence, does the merchandise licence go with him, or is the business that stays behind eligible to run the concern for the future? Or, has he the right, as has happened in other cases, to sell his interest to a third party and leave the family unit high and dry in poor circumstances? Would it be advisable — it would not apply to a company — that new applications should be in joint family  names where family units are concerned, or could the Minister give any guidance on that?
Mr. Nealon: The point being raised by Senator O'Toole might possibly be more appropriate to family law than it is to transport law. But the situation as I see it is that the deserted spouse — that is what the Senator is talking about — could then apply for a licence or could have some designated person apply for a licence for that haulage business. The licence as such is designated to an individual who would possibly be the husband in this case, or the manager, or whatever, of the company. It is not something that could be provided for here but I can see that it might be necessary to have it regularised again. I imagine it could be done through a manager or perhaps if the spouse was a competent person he or she could qualify for a licence. It is a new slant that I had not anticipated coming up——
Mr. Nealon: ——in the course of the debate, but within the existing legislation it will be possible to get the best possible answer. When such domestic situations arise, I do not think there are perfect answers to cover all areas including road haulage licences.
...on the ground that the holder has been convicted of an offence (whether under this or any other Act) in relation to the business to which the licence  relates or a vehicle used in such business,...
There are two points I want to raise. Could the Minister define what offence he is referring to under the Act? It just says “convicted of an offence”. Could he elaborate on what would constitute an offence under the Act.” The second question is: where you have a licence for six trucks, do I take it that if one of your trucks was involved in an offence, your licence would be revoked or withdrawn for the other five trucks? One question is to define the offence and the other is if one licensed truck comes under penalty for an offence, do the other five operate under the existing licence, or does the revocation effect the one truck rather than the six?
Mr. Nealon: To answer the second question first, yes, all would. It is the licensee who would be involved. As far as the various offences are concerned, this is a re-enactment of existing law, and could cover any persistent breach of the regulations as far as his licence was concerned. The question also would have to be considered whether a licence would be revocable if the vehicles as such were being used in criminal activities such as smuggling, if you like, and other types of criminal activities.
Mr. O'Leary: Would the Minister consider making it a specific offence under the Principal Act and under this section which we are now substituting for section 24 (2) of the Principal Act, allowing the Minister to revoke at his discretion a specific case where there has been an insurance offence under the Act? I have in mind the difficulties expressed by my colleagues, particularly in the early stages of this legislation, where an increased number of people might decide that they are going to go into this business. I have no doubt that what the Minister said happened after 1971 or 1972 will happen again, it will eventually consolidate in the professionals. In the meantime there could be quite a number of  small-time — and I do not want to use the word “cowboy”, but something like that — operators in the area. It is very important that we put great emphasis on the need for these people to be adequately insured and that a conviction for an offence, which is an insurance offence, should be taken very seriously by the Minister because it has grave repercussions for the public at large.
Mr. Nealon: Certainly, I go absolutely along with the point made by Senator O'Leary as regards the gravity of insurance offences. It is one of the totally unacceptable factors that people should drive on the roads with the possibility of all the damage they could do, even while doing their best, or while being a threat because of some accident that might arise. I do not think any vehicle should be allowed on the road without adequate insurance. As I understand it, the insurance offence would be covered under section 5 (b).
Does that mean that in the case of a company which is carrying say, ice cream, or the businessman in the own account class who is convicted of an offence under the hygiene Acts, that his certificate of competence can be withdrawn from him? If that is not the case it should be stated.
Mr. Nealon: There is no such thing as own account licences as such. It is useful for explaining, I suppose, the point that the Senator is making. There is no such thing as own account or a licence for hauliers under the various criteria laid down here. I would not imagine that that relates to the business to which the licence relates. I cannot be totally dogmatic  about it; I will have it checked out for the Senator but I do not think it would be grounds as contemplated by section 5.
Mr. Lanigan: I agree with the Minister and accept that he could not possibly see that it could happen, but it broadens the grounds on which a revocation could take place, whether under this or any other Act. It says “the business to which the licence relates”; The licence is there for the vehicles. The business might be a totally different business. It might not have anything to do with the road transport end of it.
Mr. Nealon: As the Senator is aware, it is a re-enactment of the law that is there at the moment. But that does not mean to say that it should not be examined. I appreciate the point the Senator made.
Government Amendment No. 1:
In page 6, line 52, to delete “Act of 1978” and to substitute “Road Transport Act, 1978”.
Mr. Ferris: The amendment is a technical amendment to delete “Act of 1978” and substitute “Road Transport Act, 1978”. It is just to define which Act we are referring to.
Mr. Nealon: It is just to make it precise. It is very technical, and it needs to be precise.
Amendment agreed to.
Section 7, as amended, agreed to.
Section 8 agreed to.
Question proposed: “That section 9 stand part of the Bill.”
Mr. Lanigan: On this section where a vehicle is being leased, what is the situation. Who is the licensee? It does not state specifically there that the person who leases the vehicle has to have a certificate of competence. Is there any place in the Bill where it clarifies the situation whereby I would be able to go out and lease a vehicle? It does not state specifically that the person to whom the vehicle is being leased has to have a certificate of competence or a licence.
Mr. Nealon: Carrying your own goods at the moment in a hired vehicle is carriage for reward. We are ceasing to make that carriage for reward under this legislation.
Mr. Lanigan: Carrying your own goods? You do not have to have a licence for carriage of own goods. I cannot see what carriage of own goods has to do with it. There is no such thing as carriage of own goods under the new legislation. I am not too sure. The statement was made that there is no such thing as own account, therefore there cannot be any such thing as carriage of own goods. Therefore this section cannot relate to that.
Mr. Nealon: If you carry your own goods in a hired vehicle at the moment you require a licence. We are doing away with that provision. That will not be required. There are people who can carry their own goods and also carry for reward.
Mr. Lanigan: To make this quite specific, what you are stating here is that if anybody wants to hire a vehicle for whatever purpose he would have to have a certificate of competence. It does not state in that section that he has to have a certificate. There is no mention of it. Section 112 of the Transport act refers to carriage of own goods in a hired vehicle—is that what section 112 of the Transport Act, 1944 says?
Mr. Nealon: Could I have the precise point?
Mr. Lanigan: The precise point I am making is that in this section it states:
“(6) Where a vehicle (being a mechanically propelled vehicle or a vehicle drawn by a mechanically propelled vehicle)—
(a) is hired to a person under a hire-purchase agreement (within the meaning of the Hire-Purchase Acts, 1946 to 1980) or is otherwise rented or leased to the person under an agreement, and
(b) the owner of the vehicle neither provides a driver nor causes a driver to be provided,
then, the person to whom the vehicle is so hired, rented or leased shall, in relation to subsections (1) to (5) of this section, be deemed to be the owner of the vehicle.”.
What relevance has that got to this Act? All you are talking about there is the leasing of a vehicle from a leasing company to the owner. It has no relevance. There is no statement about what is to be carried in that vehicle. There is nothing in it that makes any statement as to whether it is to be used for licensed use or for unlicensed use or for carriage of own goods, for which there is no licence required, or what.
Mr. Ferris: As I understand it, the present situation is that if anybody hires a vehicle to carry his own goods that is carriage for reward and that is being revoked in this Bill.
Mr. Lanigan: That is what I am asking — is that what section 112 of the Transport act states?
Mr. Nealon: Section 9 provides for the addition of a new provision to section 112 of the Transport Act, 1944. Under section 112 of the 1944 Act a person who uses a vehicle of which he is not the owner to carry his own goods is deemed to be carrying for reward and would be required to hold a merchandise licence.  The new provision in section 9 (6) provides that where a person leases or hires a vehicle without a driver to carry his own goods he shall be deemed for the purpose of section 112 of the 1944 Act to be the owner of the vehicle. This new provision and the repeal of the Road Transport Act, 1956, will in effect extend to own account operators the facility to lease or hire vehicles which is at present enjoyed by licensed hauliers, users of vehicles of 2.5 metric tonnes unladen weight and persons using vehicles in exempted areas. The 1956 Act, in order to close a loophole in the legislation, effectively imposed a requirement to have a merchandise licence when using a hired or leased vehicle other than a vehicle hired under a hire purchase agreement to carry your own goods.
Mr. Lanigan: That clarifies the point.
Mr. O'Leary: Am I right in thinking that the position is as follows, that a licence will not be required to carry own goods in your own vehicle, is that correct? It is not now required and it will not be required?
Mr. Nealon: A licence was never required.
Mr. O'Leary: Yes, that is what I am saying. There were particular circumstances where you were carrying your own goods but you were using a hired vehicle and you needed a merchandise licence. The result of this subsection is to eliminate that lacuna, and even if you hire a vehicle, as long as you do not hire the driver with it, you do not need a merchandise licence to carry your own goods,. That is very clear.
Mr. Lanigan: It was clarified by the Minister but it could be strengthened by just adding in “for the carriage of own goods”.
Mr. Nealon: We will consider that.
Mr. Lanigan: It would strengthen the section if that were added.
Mr. Nealon: While we think it is strong enough, we will take another look at it. I am told it fits into existing legislation and that it is strong enough and covers the point satisfactorily but we will have a further examination of it.
Question put and agreed to.
Sections 10 to 13, inclusive, agreed to.
Question proposed: “That section 14 stand part of the Bill.”
Mr. Lanigan: This is the section dealing mainly with penalties. I will just go back to the points that were made earlier by Senator O'Toole. There is no point in having penalties listed in legislation unless there are enough people out on the roads to check out, to catch these people who are contravening sections of this Bill. I would like the Minister to say how many convictions there have been under the tachograph legislation over the past five years since tachograph legislation came in. I know that no one would have this at the tips of his fingers but I feel that if we bring in legislation which is restrictive in some senses but which is for the good of the public and is good for the environment, we should have enough people on the ground to enable the legislation to be monitored effectively. The same applies to their requirements on weight. If you drive throughout the country at present I doubt that there are five places where you could weigh a road vehicle with a 50-foot trailer.
In this section are we given an opportunity to take a road vehicle off the road if an offence is being committed? If you go abroad with a road vehicle and commit an offence you cannot move that vehicle from the spot on which the offence has been committed until whatever problem there is has been sorted out, or the vehicle will be towed away. In this country — this particularly applies to foreign vehicles — lorries can be overloaded, underloaded, or can have no  tachograph and yet they can drive away. A summons might arrive perhaps three months later in Bulgaria. What difference does it make then? That truck will never be back in Ireland again and there is no law enforcement at all. Are we strengthening the law so that people who came in from outside can be effectively stopped from misusing our roads under any circumstances?
Mr. Nealon: I regret that the exact figure for prosecutions on tachograph offences is not immediately available but it is thought to be, perhaps in the region of 1,000 prosecutions taken but that does not necessarily mean successful prosecutions. As far as the power to confiscate or immobilise a vehicle goes, there was a provision for that in the legislation but it was repealed. We have substantially increased penalties for offences but we have not gone as far as confiscation or the other method of immobilisation mentioned by the Senator.
Mr. Lanigan: There is a lack of willingness on the part of the Department to deal with the offences if we are not going to allow the temporary immobilisation or the confiscation of a vehicle for the time being. The Minister is saying that if there is a vehicle on the road which is grossly overloaded and in that situation its brakes could not work properly, the whole system could not work properly. It is being stated that that driver can get back into his cab with a note from the garda or a note from a person from the Department of the Environment nothing that an offence has been committed. The driver then merrily drives up to the North or down to the docks. He could cause a major accident.
Similarly, if a vehicle from the North is stopped on the Naas dual carriageway with four bald tyres and a garda summons him, telling him he has four bald tyres, the driver says: “That is grand, I have four bald tyres”. The garda gives him a summons for having four bald tyres and he drives up to the North with the four bald tyres and he could jackknife going up Hackball's Cross and create the type  of accident we have seen too often in this country.
Mr. Nealon: Apparently there was provision in the 1933 legislation for confiscation of an offending vehicle but considering the present values it was thought since then that that penalty was too severe. As far as offences against the transport regulations are concerned, perhaps confiscation would be too severe, but there are some elements that come under the Department of the Environment and other elements that come under the Department of Justice. Certainly, where a vehicle is dangerous, in the circumstances as pointed out by the Senator, it should not, as far as possible, be allowed to continue to be dangerous. Accidents might easily occur in circumstances where deficiencies such as bald tyres exist. I will keep in mind the points that have been raised by the Senator.
Mr. Lanigan: I am talking about confiscation until the offence is rectified. If a truck driver from Ireland is going through England and his tachograph is not in order, when he reaches the docks in Liverpool and is checked by the tachograph official from the Department of the Environment over there, he will not be allowed to leave the docks until he gets the tachograph system in working order. That is a provision we should have here. If somebody is stopped for a tachograph offence he should have to produce evidence, within a day or two, showing that he has fixed his tachograph system. If it is a case of a vehicle being in a dangerous condition, there should be an immediate temporary confiscation of that vehicle. When I say temporary confiscation I mean that the gardaí should have the power to phone a competent garage or a competent MOT station to tow that vehicle off the road immediately and to have the fault rectified.
Mr. Nealon: Such things as the tachograph are dealt with by us, by the Department of Communications, and possibly by this legislation. Such things  as bald tyres and defective vehicles are dealt with elsewhere. I will take those points into consideration.
Question put and agreed to.
Question proposed: “That Section 15 stand part of the Bill.”
Mr. O'Leary: Is it the intention of the Minister to consolidate the legislation now, or are there amendments coming which will make that inappropriate?
Mr. Nealon: It would be desirable if it could be consolidated, but it was felt that this was the best way to proceed at this stage because there was great pressure for this type of Bill. Hopefully, at some future stage it will be consolidated, but there is no present plan for it. It is a question of when we can get around to the consolidation.
Mr. O'Leary: We should have some consideration for the person who is trying to understand that. There are a number of different pieces of paper which it is necessary to have in order to understand this legislation. We are talking about the Act of 1933, the Act of 1971, the Act of 1978, and the Act of 1978 inserting things into the Act of 1933 and they, in turn, being taken out and re-inserted in this Act of 1985. It is becoming incomprehensible. It was incomprehensible in 1933 and it is getting even worse now. Eventually even the Minister will not be able to understand it.
Mr. Nealon: I can assure the Senator that he will have the absolute support of my Department in what he is saying. Indeed, we came across examples of it during the course of this Bill. This is an incredibly complicated Bill, referring back to several Acts. Consolidation, of course, would be the ideal thing. I will pass that along with the strongest recommendation, but it is really a question of time with a lot of new legislation coming along. I would like to see it consolidated.  I know that it would be extremely useful for all people referring to it, because it is a very laborious task trying to put all the pieces together and to follow it in a coherent fashion.
Question put and agreed to.
Sections 16 to 18, inclusive, agreed to.
Title agreed to.
Bill reported with amendment.
Acting Chairman: When is it proposed to take the next Stage?
Mr. Ferris: In view of the various points raised by Senators O'Leary, O'Toole and Lanigan, and from the Minister's commitments that he will look at them, could I respectfully suggest to the Minister that as these problems were identified in this House in the Bill as initiated, that he would do us the courtesy, over the weekend, of looking at them? We will take the final Stages of the Bill at 2.30 p.m. on Tuesday, 2 July. There will be ministerial amendments, if they are considered necessary. There will not be a debate on them. The Minister will have the Bill as he considers whether it should be amended or not and the advice from his Department within a matter of 20 minutes on Tuesday. As a House of legislation we would prefer to ensure that the problems we have raised on the Bill would be discussed and finalised in this House because we would have no control over them when they go to the other House. I would prefer, as acting  Leader of the House, if the Minister would agree to that. The Minister has been most co-operative in going through the legislation with us. Perhaps he will agree finally to allow us to have the final tidy-up on it on Tuesday. We will then facilitate the Minister for the other House.
Mr. Nealon: I would agree with that, but it might not be possible to have the various considerations completed in time for that. I am naturally anxious to get all Stages through so that we can get the legislation through before the summer recess. It might not be possible to have the considerations finished by the next sitting.
Mr. Ferris: We are prepared to take them on the first sitting day that would suit the Minister.
Mr. O'Leary: All of us would like to see this to fruition. I thank the Minister for his co-operation.
Acting Chairman: The House must fix a date.
Mr. Ferris: I will settle for Tuesday, 2 July, which is the earliest we can take it. If the Minister is not ready until Wednesday, we will facilitate him on Wednesday.
Report Stage ordered for Tuesday, 2 July 1985.
The Seanad adjourned until 2.30 p.m. on Tuesday, 2 July 1985.
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