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R v Secretary of State for the Environment, Transport and Regions and another ex parte Scott and others

QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)

HEARING-DATES: 30 MARCH 1999

30 MARCH 1999

COUNSEL:
M Maitland for the Applicants; Ms N Lieven for the First Respondent; M Fordham for the Second Respondent

PANEL: HARRISON J

JUDGMENTBY-1: HARRISON J

JUDGMENT-1:
HARRISON J: This is an application made by eight London cab drivers for leave to apply for judicial review challenging the validity of the Heathrow Airport-London Byelaws 1996.

All of the applicants are charged that they on various dates between January 1998 and August 1998 committed offences under art 9(1) of those byelaws, making it an offence to cause or permit a taxi to ply for hire other than at an authorised standing, and one of the applicants is charged under art 4(12), making it an offence to offer services for reward.

These cases came before the stipendiary magistrate, Mr Day, at the Uxbridge Magistrates' Court on 16 July 1998 when he ruled that the byelaws were valid insofar as they were properly authenticated. Miss Archer, who is a barrister employed by the London Cab Drivers' Club, then pointed out that there was a wider attack on the validity of the byelaws than the simple point upon which the magistrate had decided the matter and she wanted to have a pretrial review to argue the other issues. All the cases were therefore adjourned to 2 October.

Due to the late service of a skeleton argument on behalf of the respondents the matter was further adjourned to 6 October.

It was between those two dates of the 2nd and 6 October that Miss Archer decided that the Magistrates' Court would not have sufficient jurisdiction to make such a comprehensive adjudication as she was seeking and she decided, therefore, that she should be making an application for leave to apply for judicial review. Thus it was on 6 October that she persuaded the Magistrates' Court to adjourn all of the cases pending her application for leave to apply for judicial review, that application being lodged on that day. Those cases now stand adjourned until 4 May 1999.

Mr Maitland, who has appeared on behalf of the applicants, has raised four points relating to the validity of the byelaws, namely procedural impropriety; irrationality; unreasonableness and proportionality.

Mr Justice Scott Baker, when dealing with this matter on the papers, directed that an oral hearing should be held and also specified that the applicants must be prepared to deal with the question of delay.

Mr Fordham, who has appeared on behalf of Heathrow Airport Limited, has argued the four substantive points and Miss Lieven, who has appeared on behalf of the Secretary of State, has argued the issue of delay. I therefore turn to those matters in reverse order.

Firstly, I deal with the question of delay.

Mr Maitland, on behalf of the applicants, dealt firstly with the delay from the time that the byelaws were confirmed in October 1996. He said that none of the individuals from the London Cab Drivers' Club had been involved in offences under those byelaws prior to March 1998 and were therefore unaware of them. He said there was a substantial query whether they had been brought to the attention of the cab drivers. I was referred to Mr Allen's affidavit, which showed photographs of the 1983 byelaws in place, it was said, in May 1997 at the entrance to the old feeder park, and I was told that there were no notices displayed at the new feeder park, nor at the public entrances. There was also, he stated, the question of the availability of the byelaws at the airport building.

He also dealt with the question of the delay between the date of the Magistrates' Court hearing in July 1998 and the application for leave made on 6 October 1998. His point was, in effect, that the only decision at that stage by the magistrate related to the question of authenticity of the byelaws and that there were other matters which it was sought to challenge on the validity issue. Miss Archer had had trouble getting a copy of the byelaws, only receiving them on 24 December 1998. Mr Maitland also said that it was not appropriate to have regard to the period of 21 days for case stated because that would only apply to the issue of authenticity which was not the nub of the applicant's case.

It seems to me that I must deal with the question of delay from the date that the byelaws were confirmed on 30 October 1996, because this is a challenge to the validity of the byelaws as a whole as opposed to solely the byelaws under which these applicants are charged.

It is pointed out by Miss Lieven that there is nothing in the affidavit evidence to say that either Mr Allen or the applicants were unaware of the 1996 byelaws. I am told by Mr Maitland that, if leave were granted, that would be challenged. However, that is the position that is before me at the moment and, perhaps more importantly than that, it is clear from a letter from BAA Heathrow to the Chairman of the London Cab Drivers' Club, dated 5 February 1997, that they were in that letter made aware of the new version of the byelaws which had come into force in December 1996.

Bearing in mind that the club must be taken to have been aware of the byelaws by virtue of that letter, I note that Mr Allen is an elected committee member of the London Cab Drivers' Club and that Miss Archer is a barrister employed by that club.

There is a dispute as to what signs or notices were put up at what places dealing with the byelaws. This is not the right forum for me to make any findings relating to them, but, bearing in mind the evidence which I have referred to, it does seem to me that it would have been reasonable to have expected a challenge to have been made to the byelaws within a short time of them having been confirmed. This challenge that is now brought was made in October 1998. This application has not, therefore, been made promptly and I am not convinced that there is a proper explanation for that delay.

There is further delay between the time that these informations were laid against the applicants in January to March 1998 and the date of this application for leave, which is October 1998. It is clear from Miss Archer's affidavit that she found considerable difficulty in getting copies of the byelaws. However, the decision whether or not to go for an attack on the validity of the byelaws wider than the immediate point raised before the Magistrates' Court was, at all times, open and it is clear that it took from the date of the decision of the magistrate in July 1998 until October 1998 for the decision to be made that judicial review was the appropriate way of proceeding. That is another period of delay. Although I understand the difficulties of the amount of work that had to be done, I nevertheless take the view that that was a further period of delay which should not have occurred.

Putting those two aspects of delay together, in the normal course of events I would have taken the view that that delay should result in this application being refused. However, before coming to a decision on that, as it is a discretionary matter, it is right that I should look at the four substantive points that have been made because, if there were very strong and compelling points to be made, I could be persuaded to look again at my provisional decision relating to the question of delay.

I come, therefore, to deal with the four substantive points. Mr Maitland had originally taken a point relating to procedural impropriety which was wrongly based on the supposition that these byelaws were made by the Secretary of State and should have been made by statutory instrument. It is acknowledged that that was misconceived and that has no longer been pursued.

However, there is one remaining limb of his procedural impropriety argument which is based on the lack of availability of the byelaws, particularly their lack of display at the airport. He accepts there is no requirement that they should be displayed, but he says that the previous ones were -- the previous ones being the 1983 byelaws -- even after, he says, the 1996 byelaws came into force.

I should first draw attention to the statutory requirements relating to the availability of the byelaws. By virtue of s 63(5) of the Airports Act and Sch 3, para 7, of that Act, the byelaws have to be "deposited at the offices of the airport operator and shall at all reasonable hours be open to inspection free of charge and shall be furnished to any person on application and payment of a reasonable fee". Those are the statutory requirements.

There is a dispute as to whether or not that was complied with insofar as Miss Archer does give evidence in her affidavit about an occasion where she applied in July 1998 to the Legal Department at Heathrow Airport and was not supplied with a copy.

Leaving that aside though, the essential point seems to me to be that the degree of availability of the byelaws is not a reason for impugning the validity of the byelaws. It may well be relevant when raised as a defence to a prosecution in the Magistrates' Court, but I do not consider that it can arguably be said to be a ground upon which the validity of the byelaws themselves can be impugned.

Mr Maitland's second point was that the byelaws purport to impose unreasonable restrictions on black cab drivers, in particular discriminating between them and minicabs. I have been referred to relevant parts of the byelaws, in particular Byelaw 9(1), which deals with taxis, and Byelaw 3(27), which deals with private hire vehicles. It was explained to me that minicabs are entitled to enter without fee if they are pre-booked, but not allowed to use the feeder park; whereas cabs have to pay a fee to get into the feeder park. I see nothing unreasonable about that.

My attention was drawn by Mr Maitland to Kruse-v-Johnson (1898) 62 JP 469, where Lord Russell of Killowen at page 471 referred to the fact that "the court should jealously watch the exercise of these powers [of, in effect, private bodies], and guard against their unnecessary or unreasonable exercise to the public disadvantage, bearing in mind that their primary purpose is to make money for its shareholders".

Whilst looking carefully at the byelaws with that in mind, I see absolutely nothing unreasonable at all or irrational about the byelaws in the way that they affect black cabs and minicabs.

The third matter raised by Mr Maitland related to the unreasonableness of art 4 (8. Article 4(8 provides:

"No person shall erect or use any apparatus for transmission, receipt, recording, reproduction or amplification of sound, speech or images for commercial purposes."

The submission that was made in relation to that is that that was very wide indeed and so wide as to be potentially unreasonable because it could be implemented unreasonably and that it could be unenforceable. I do not think that there is anything in that point. That byelaw seems to me to come well within the lawful discretion of the airport operator and, in any event, it is an article of the byelaws which is not in issue at all in relation to these applicants and their concern with the byelaws, and is certainly not a matter upon which I would grant leave.

Fourthly, Mr Maitland submits that byelaw 9(1) is ultra vires the national law, namely s 33 of the Hackney Carriages Act 1843, which is a section which also deals with hackney carriages plying for hire elsewhere than at an appointed standing place. He particularly makes the point that a prosecution under the 1843 Act could only result in a fine of some £200, whilst a prosecution for the same sort of thing under the byelaws could result in a maximum fine of about £1,000. Furthermore, he makes the point that a complaint made under the 1843 Act has to be brought within 7 days, whereas an information laid for a breach of the byelaws under the Magistrates' Court Act has to be made within 6 months.

The plain fact of the matter, however, is that this is something which has been expressly authorised by Parliament by the Act under which these bylaws were made. Section 63(1) gives the airport operator power to make byelaws for regulating the use and operation of the airport and the conduct of all persons within the airport, and s 63(2)(e) expressly empowers the making of byelaws for prohibiting the waiting by hackney carriages except at standings appointed by such person as may be specified in the byelaws, so this is something expressly empowered by Parliament. Furthermore, the penalty which is provided for breach of the byelaws is expressly enabled by s 64 of that Act.

In my view, there is nothing unlawful about having two statutes which may overlap, provided that the byelaws themselves are not creating as an offence something which Parliament has otherwise said to be lawful.

My attention was drawn to the Interpretation Act 1978 where s 18 provides:

"Where an act or omission constitutes an offence under two or more Acts ... the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts ... but shall not be liable to be punished more than once for the same offence."

Finally, on this aspect, there was a point mentioned by Mr Maitland about art 6(2) which deals with lights on vehicles but that, again, is not a byelaw which is relevant to the applicants' case in relation to the informations laid against them and, in any event, I do not consider, for very much the same reasons as I have already mentioned, that there is any substance in that point.

It follows that, having been through all four substantive points raised by Mr Maitland, I have come to the conclusion that there is nothing in those points upon which it would be right for me to conclude that there was an arguable case such that leave ought to be given. Even if I were wrong about that, I remind myself of my conclusion relating to the question of delay. Certainly there is no strong and compelling point which has been raised such as would compel me to the conclusion that leave should be granted despite the delay that there has been. For those reasons this application must be dismissed.

DISPOSITION:
Application dismissed.

SOLICITORS:
London Cab Drivers' Club; Treasury Solicitors; Herbert Smith