SINCE WHEN HAS ‘FIT AND PROPER’ By Donna Short
If you are a licence holder within a licensing district where the terminology “Fit and Proper” has recently changed to “Safe and Suitable”, that is every indicator that your council is consider- ing, or has adopted, a good many of the precepts contained within the Insti- tute of Licensing document “Guidance on determining the suitability of appli- cants and licensees in the hackney and private hire trades”.
This rather controversial IoL document was published in April 2018; in its Foreword it was soundly endorsed by Philip Kolvin QC of Cornerstone Barristers, who – after hav- ing painted rather a stark and unflattering picture of the taxi and private hire industry – said that “…this guidance is to be wel- comed. It rightly emphasises that any circumstance relating to the licensee is potentially relevant, provided of course that it is relevant to their safety and suit- ability to hold a licence.
“… The guidance is therefore commended to licensing authorities. It is hoped that, in due course, it will sit at the elbow of every councillor and officer working in taxi licens- ing.”
From all accounts, there are more and more elbows across the country at which this guidance is sitting – and indeed has been brought into their taxi/PHV licensing policy by a growing number of licensing authori- ties.
That is what this feature is about: the rami- fications of adoption of the IoL guidance by growing numbers of councils, and the effects of that action on their licence hold- ers. As you might imagine, the spread of this guidance has stirred up quite a ruckus for all sorts of reasons, mainly the potential to hit hundreds, if not thousands, of drivers’ finan- cial futures if what are clearly deemed the draconian proposals within the guidance are adopted as policy.
DOWN TO BRASS TACKS
The problem has arisen basically because no Government, no court in the land, no other source has set down a definitive description of “fit and proper person” – despite the fact that the term is used as a benchmark of taxi and PHV licensing stan- dards on at least four occasions within the Local Government (Miscellaneous Provi- sions) Act 1976.
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The IoL guidance covers this topic thus: “It is the whole issue of ‘fit and proper’ that causes local authorities the most difficul- ties. It has never been specifically judicially defined but was mentioned in Leeds City Council v Hussain. Silber J said:
‘…. the purpose of the power of suspension is to protect users of licensed vehicles and those who are driven by them and members of the public. Its purpose [and] therefore [the test of fitness and propriety], is to pre- vent licences being given to or used by those who are not suitable people taking into account their driving record, their driv- ing experience, their sobriety, mental and physical fitness, honesty, and that they are people who would not take advantage of their employment to abuse or assault pas- sengers.’
“This is reflected in a test widely used by local authorities: ‘Would you (as a member of the licensing committee or other person charged with the ability to grant a hackney carriage driver’s licence) allow your son or daughter, spouse or partner, mother or father, grandson or granddaughter or any other person for whom you care, to get into a vehicle with this person alone?’
“It is suggested that the expression ‘safe and suitable’ person to hold a driver’s licence is a good interpretation which nei- ther adds nor removes anything from the original term of ‘fit and proper’ but brings the concept up to date.”
The IoL guidance covers each and every aspect of licensing including hackney and private hire drivers, vehicle proprietors, and private hire operators, examining the possi- ble parameters to carry forward to enhance the safety of the travelling public.
THE ABSOLUTE CLINCHER
However, the real controversy has arisen within the section that deals with licensed drivers and their “safety and suitability”. We’ll not reproduce the whole document here as it’s some 28 A4 pages; even the Driver section extends over quite a few of those pages. But the real zinger is para- graph 4.42 within that section:-
“Other motoring offences”. A minor traf- fic or vehicle related offence is one which does not involve loss of life, driving under the influence of drink or drugs, driving whilst using a mobile phone, and has not resulted in injury to any person or damage to any property (including vehicles). Where an applicant has seven or more points on their DVLA licence for minor
traffic or similar offences, a licence will not be granted until at least five years have elapsed since the completion of any sentence imposed.”
The ripple effect of this paragraph alone would appear to be catastrophic in many licensing authorities, whose full Council has adopted the entire IoL guidance as their policy going forward. One of the first areas where the trade challenged this action was Southampton.
NPHTA Executive board member Ian Hall has been an active stakeholder member of the local trade in that area for many years. In conjunction with his colleagues from the local trade association, they challenged the imposition of 4.42 as being totally unrea- sonable in its scope and impact on the financial future of licence holders in the dis- trict. The outcome was that the council has replaced 4.42 with a concession that if licence holders accrue nine (not seven) DVLA points for “minor traffic or similar offences” the applicant will be required to undertake driver assessment training as approved by the council.
Well, that’s something anyway. However, the Southampton trade points out that there are still something like 12 paragraphs within the document where- by a council that has adopted the IoL guid- ance as policy can take your licence away for between five and ten years.
Ian Hall In short, one is not amused… FEBRUARY 2020
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