TAXI LAW EXPLAINED FIT AND PROPER REDEFINED
This article was supplied by: Stephen McCaffrey Head of Taxi Defence Barristers and Taxi Defence Scotland 020 7060 4773
www.taxidefencebarristers.co.uk
Now however, there is a common standard:
Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night?
The recently published hackney carriage and private hire statutory guidance has introduced, for the first time, a formal defi- nition of ‘fit & proper’. This is a significant change for new applicants but also existing licence holders. In this article I will look at the new definition of fit and proper, the guidance on how the new definition should be applied and what the wider guidance on fit and proper means for the trade.
FIT AND PROPER AND THE LAW
Before I look at the statutory guidance specifically, here is a quick reminder of the legal basis for fit and proper in the context for hackney carriage and private hire licensing:
Local Government (Miscellaneous Provi- sions) Act 1976:
• Section 51 in relation to licensing of drivers of private hire vehicles (England and Wales outside London)
• Section 55 in relation to licensing of operators of private hire vehicles (Eng- land and Wales outside London)
• Section 59 in relation to licensing of drivers of taxis (England and Wales out- side London)
Civic Government (Scotland) Act 1982:
• Section 13 in relation to licensing of drivers of taxis and private hire cars in Scotland
THE STATUTORY GUIDANCE
The new statutory guidance is significant. It is the first such document of its kind for hackney carriage and private hire licensing and its impact will certainly be felt on the licensing of hackney carriages and the pri- vate hire sector.
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Unlike other pieces of Government guid- ance, including the DfT’s best practice guidance, the new statutory guidance places a statutory duty on licensing author- ities to adhere to the guidance.
At paragraph 2.6 and 2.7, the guidance makes it clear that:
“Licensing authorities “must have regard” when exercising their functions” stating that “Having regard” is more than having a cursory glance at a document before arriv- ing at a preconceived conclusion.
“Having regard’ to these standards requires public authorities, in formulating a policy, to give considerations the weight which is proportionate in the circum- stances. Given that the standards have been set directly to address the safeguard- ing of the public and the potential impact of failings in this area, the importance of thoroughly considering these standards cannot be overstated. It is not a question of box ticking; the standards must be consid- ered rigorously and with an open mind.”
It is clear therefore from the above, that the Government expects licensing authorities to take the guidance seriously and the rec- ommendations to be implemented unless there is a compelling local reason not to do so.
THE FIT AND PROPER TEST: WOULD YOU?
An important aspect of the new statutory guidance is the definition of ‘fit and prop- er’. Given the status of the guidance (as explained above), the new definition car- ries significant weight. Prior to the new statutory guidance, there was very little consistency in decision making because each licensing authority adopted its own approach, standards and definition of what constitutes a fit and proper person.
Referring again to the status of the new statutory guidance, the standards must be considered rigorously and with an open mind according to the statutory guidance.
“LICENSEES SHOULD NOT BE GIVEN THE BENEFIT OF DOUBT”
Whilst it is significant that there now exists a formal and common definition of ‘fit and proper’, the effectiveness of a common definition - to raise standards in the sector - will largely depend on how the new defi- nition is interpreted and applied in practice by licensing authorities.
By setting a common definition of ‘fit and proper’, the Government clearly envisages consistent decision making by licensing. However, the construction of the new defi- nition suggests a subjective approach to assessing whether a person is fit and prop- er (i.e. “would you allow” & “whom you care”) rather than a more objective stan- dard. The problem with a subjective assessment is that it ultimately boils down to personal preference and opinion influ- enced by life experiences and views. This will inevitably lead to inconsistent approaches. It is worth noting of course that objectivity will not entirely be removed from the ‘fit and proper’ assess- ment because it should be backed up by a robust licensing policy. I will look at this in more detail later.
The point I want to make here is that deci- sion on a person’s fitness to have, or be granted, a hackney carriage or private hire licence is important and carries a lot of weight and therefore it is also very impor- tant that licensing authorities get it right. The new statutory guidance goes on to say at paragraph 5.14:
“All decisions on the suitability of an appli- cant or licensee should be made on the balance of probability. This means that an applicant or licensee should not be
SEPTEMBER 2020
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