TAXI LAW EXPLAINED DECISIONS WITHOUT DISCRETION – LAWFUL?
This article was supplied by: Stephen McCaffrey Head of Taxi Defence Barristers and Taxi Defence Scotland 020 7060 4773
www.taxidefencebarristers.co.uk www.taxidefencescotland.co.uk
only license people judged to be fit and proper people.
S. 51 LG(MP)A 1976:
Hackney carriage (taxi) and private hire licensing policies adopting an ‘absolute’ approach to fit and proper is becoming increasingly popular with licensing author- ities. This is largely due to the adoption of the Institute of Licensing’s ‘Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades’ which has also been adopted in some form by the Department for Transport (DfT) in its yet to be published ‘Taxi and Private Hire Vehicle Licensing: Protecting Users Statutory Guidance for Licensing Authorities’.
As I will look at in more detail later in this article, ‘absolute’ terms (also known as ‘bright line’ policies) outline circumstances in which a licence applicant will ‘never’ be licensed or when a licence holder ‘will’ lose their licence. This is most prevalent in con- viction policies and penalty point schemes.
Licensing policy carries substantial weight in terms of local decision making. It is a well established fact in law that licensing policy must only be deviated from in exceptional circumstances. This therefore leaves very little discretion, in some cases none at all, which is contrary to the most basic legal rights of fairness and right to a fair trial.
In this article I will look at the use of convic- tion policies and penalty point schemes and consider the lawfulness of these, particular- ly where these policies are framed in absolute terms.
As always however, we need to consider the legislation first to understand the remit of licensing authorities’ powers.
LAW
Outside London, the Local Government (Miscellaneous Provisions) Act 1976 places a statutory duty on licensing authorities to
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Licensing of drivers of private hire vehicles (1) Subject to the provisions of this Part of this Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver’s licence: Provided that a district council shall not grant a licence—
(a) unless they are satisfied (i) that the applicant is a fit and proper per- son to hold a driver’s licence.
S. 59 LG(MP)A 1976:
Qualifications for hackney carriage drivers (1) Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage—
(a) unless they are satisfied (i) that the applicant is a fit and proper per- son to hold a driver’s licence.
Inside London, the same duty exists by virtue of the London Hackney Carriages Act 1843:
S.8 of the LHCA 1843:
8. Registrar to grant licences. At the time of granting any licence an abstract of the laws and a ticket to be given.
It shall be lawful for Transport for London to grant a licence to act as driver of hack- ney carriages,. . . to any person who shall produce such a certificate as shall satisfy Transport for London of his good behaviour and fitness for such situation.
There is also a more general common law discretion for licensing authorities to set their own local licensing policies. Licensing policies, in effect, provide licence holders with more comprehensive and practical information on how licensing authorities will discharge this statutory duty. It is with- in licensing policies that conviction policies and other ‘fit and proper’ criteria are laid out.
CONVICTION POLICIES
The DfT taxi and private hire licensing statis- tics for 2018 suggested that 97 per cent of
licensing authorities have some sort of adopted convictions policy.
Generally speaking, convictions policies will stipulate a time period a licensing authority will expect to have elapsed since a person’s conviction. The more serious the offence the longer the time period would be.
As I mentioned above, hackney carriage (taxi) and private hire licensing policies adopting a more absolute approach (or bright line) to fit and proper is becoming increasingly popular. This is in some part due to the Institute of Licensing’s ‘Guid- ance on determining the suitability of applicants and licensees in the hackney and private hire trades’.
Simply put, these bright line policies will stipulate instances where a licensing authority will ‘never’ issue a licence. The language used is a move away from more traditional approaches where conviction policies used softer language such as ‘would not normally’.
As I will discuss later in this article, discre- tion is a fundamental right but the application of bright line conviction policies may not afford licence holders their funda- mental rights. The draft DfT guidance has confused matters.
One the one hand the DfT has made clear its expectations: “The Guidance sets out a framework of policies that … licensing authorities “must have regard” to when exercising their functions… “Having regard” to guidance requires public authorities…to give considerations the weight which is pro- portionate in the circumstances…It is not a question of box ticking; the recommenda- tions must be considered rigorously and with an open mind.”
This would imply that the DfT’s proposed convictions policy must be adopted unless “truly exceptional circumstance” exist. The DfT expectations are clearly stated.
However, the draft convictions policy then goes on to give licensing authorities discre- tion saying:
“Authorities must consider each case on its own merits, and applicants/licensees are entitled to a fair and impartial public hearing of their application if required.”
MARCH 2020
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