BUT WE HAVE NOT DECIDED YET, SO WE HAVEN’T REFUSED!
The council said that section 77(2) was irrelevant. Since the renewal application had not been refused: on the date the appellant’s licence expired the council had yet to process his application.
Against that, it was submitted that to make sense of the appeal provisions in the LGMPA 1976, it is necessary to give the word “refusal” a less
literal definition. Where an
application to renew a licence is made prior to expiry, a failure to issue by the time it expires should be treated as a refusal in order to avoid absurd consequences which cannot have been the intention of Parliament.
WHAT DOES ‘ABSURD CONSEQUENCES’ MEAN?
It is a presumption of statutory interpretation that Parliament intends to act reasonably: see IRC v Hinchy [1961] AC 748 at p 767 per Lord Reid. In R v Central Valuation Officer [2003] UKHL 20 at 116, Lord Millet cited Hinchy and continued: “The Courts will presume that Parliament did not intend a statute to have consequences which are objectionable or unde- sirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless.”
The literalist construction of section 77(2) LGMPA as claimed in this appeal had a number of such consequences:
THIS CANNOT BE LOGICAL OR CORRECT!
A refused renewal applicant would be in a better position than a driver whose renewed licence is granted late; since the refused driver may continue to drive his vehicle for ‘the appeal period’ even after his licence expires; yet a driver who has applied to renew his licence but has not been given a decision in time would have to stop driving until the council looked at his application. Even a driver whose licence is revoked would be better off than a driver who is simply waiting for a licence to be printed.
IT GETS WORSE!
If the council’s 5 September decision had been to refuse, he could have appealed the decision, but not have carried on pending the result of the appeal because – the council says – since 22 August he would not have been “lawfully carrying on his business up to the time of their decision”.
It was argued that it would be irrational had the decision been to refuse, to have the right to carry on working pending appeal, but to deny him that right if his application is refused after the licence expires, being unemployed just because the council has not done their job yet, is unlikely to have been the intention of Parliament.
JANUARY 2022 13
CONCLUSION
There are other examples of councils refusing to obey the law and lead by example when this stands in the way of trying to show us who’s boss. These are a couple that spring to mind:
• Removing licence plates from vehicles which have failed a roadside inspection or worse, placing a sticker across the licence plate for all to see bearing the words, “LICENCE SUSPENDED.” This is unlawful yet some councils persist with it because it makes a good story in the local rag and makes them look big in the eyes of the public.
We have to remember that the role of licensing authorities is to protect the public not to punish or even humiliate their licensees. Removing plates or placing such stickers over them in full view of the general public is almost akin to Chinese authorities parading Covid lockdown breakers through the city wearing high-visibility clothing or, in medieval times, putting people in stocks and allowing the public to throw rotten vegetables at them. Any appropriate and propor- tionate punishments should be left to the courts to determine.
• Not following legal requirements regarding consultations on licensing policy changes as set out in the Regulators’ Code, Department for Transport Statutory Guidance or Sardar and Others versus Watford 2006.
In essence, councils should not treat consultation exercises as public relations stunts where the outcome is pre- determined. They should not ask binary do you agree/ disagree questions with varying degrees of passion (How strongly do you agree/disagree?) or other leading questions in order
to lend validity to their predetermined policy
decisions. Instead they should set out their proposed changes with the reasoning behind them in order to invite intelligent and constructive responses from all interested parties and allow elected members to arrive at informed decisions. This is how representative democracy is supposed to work. A consultation is not an exercise in garnering votes for or against particular proposals. The mandate comes from the fact that councillors are already elected.
I have even heard of one local council that puts proposed fare increases out to public ‘consultation.’ Under normal circumstances, turkeys do not vote for Christmas!
Our role at the NPHTA is to bring these councils to book. Join us if you haven’t already and if you’re experiencing similar problems, give us a shout -
info@npha.co.uk/0161 280 2800.
Article by Steven Toy, NPHTA Board Member Trade leader of Cannock Chase HC PH Liaison Group
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