Plate premiums likely are protected by the Human Rights Act

MarkRGuildford · **Posted:** Mon Apr 25, 2011 12:23 pm

The decision in the Royden case that taxi licence premiums were not property protected by the Human Rights Act was almost certainly wrong, and should have been appealed. I would urge anyone about to be affected or where a decision to delimit was made within the last three years to seek a barristers opinion.

European case law has established that premiums resulting from restrictive licences are property protected by the Human Rights Act. Councils can derestrict provided they comply with the Human Rights Act rules set out as follows:

Quote:

The questions to be asked
20. It follows from the above that the relevant questions to be asked when considering whether there has been a violation of the right to property guaranteed
by Article 1 of Protocol No. 1 are:
(i) Is there a property right, or possession, within the scope of Article 1?
(ii) Has there been an interference with that possession?
(iii) Under which of the three rules of Article 1 does the interference fall to be considered?
(iv) Does the interference serve a legitimate objective in the public or general interest?
(v) Is the interference proportionate? That is, does it strike a fair balance between the demands of the general interest of the community and the
requirements of the protection of the individual’s fundamental rights?
(vi) Does the interference comply with the principle of legal certainty, or legality?
21. If there has been an interference with a possession, the interference will be incompatible with Article 1 of Protocol No.1 if the answer to any one of questions (4) to (6) is “no”.

See section 20 of "The right to property-A guide to the implementation of Article 1 of Protocol No. 1 to the European Convention on Human Rights" Monica Carss-Frisk http://echr.coe.int/NR/rdonlyres/AFE5CA8A-9F42-4F6F-997B-12E290BA2121/0/DG2ENHRHAND042003.pdf

It seems that the counsel for Royden wanted to appeal, but Royden didn't probably because of the risk of further costs.
http://www.bailii.org/ew/cases/EWHC/Admin/2002/2484.html

The Councils seem to be saying that any restriction is illegal, but many spheres of activity are also restricted by Council licences, and those restrictions are not illegal.

Any change to policy must be proportionate to the problem addressed, and compensation is payable for the loss of licence value premium.

captain cab · **Posted:** Mon Apr 25, 2011 1:41 pm

But nobody denied Mr Royden the rights to his property, or the peaceful enjoyment of the property?

CC

MarkRGuildford · **Posted:** Mon Apr 25, 2011 2:01 pm

captain cab wrote:

But nobody denied Mr Royden the rights to his property, or the peaceful enjoyment of the property?

(ii) Has there been an interference with that possession?

That is the question the law requires to be asked. Obviously there was interference in the premium value of the licence, which is a property. The Judge accepted that at:

Quote:

128 On the analysis so far, we are left with the possibility of a rather hard to define "interference" with property, contrary to the general rule in the first sentence of the first paragraph of Article 1, which is neither a "deprivation", nor the "control of the use" of property. Although I accept that, conceptually speaking, one can envisage a residual category of "interference with property" which is neither deprivation nor control of use, it seems to me that in such a case the nature of the "interference with property" alleged should be analysed closely in order to determine whether it really is a matter within the ambit of Article 1 of the First Protocol.

captain cab · **Posted:** Mon Apr 25, 2011 2:14 pm

MarkRGuildford wrote:

captain cab wrote:

But nobody denied Mr Royden the rights to his property, or the peaceful enjoyment of the property?

(ii) Has there been an interference with that possession?

That is the question the law requires to be asked. Obviously there was interference in the premium value of the licence, which is a property. The Judge accepted that at:

Quote:

128 On the analysis so far, we are left with the possibility of a rather hard to define "interference" with property, contrary to the general rule in the first sentence of the first paragraph of Article 1, which is neither a "deprivation", nor the "control of the use" of property. Although I accept that, conceptually speaking, one can envisage a residual category of "interference with property" which is neither deprivation nor control of use, it seems to me that in such a case the nature of the "interference with property" alleged should be analysed closely in order to determine whether it really is a matter within the ambit of Article 1 of the First Protocol.

True, but it was countered at 135 & 136 with;

The present case is not a case of withdrawal. However, applying the above principles by analogy, it seems to me hard to say that Mr Royden and his colleagues had a reasonable and legitimate expectation that a policy of restricting the number of hackney carriage vehicles licensed in the Wirral area would continue indefinitely in force. On the contrary, it has been clear since the coming into force of the Transport Act 1985, and the Department of Transport Circular no. 3/85, that the legislative policy has been in favour of de-restriction, the only possible exception being if no unmet demand can be established. Even if an authority is satisfied that there is no unmet demand, it is still under no statutory obligation to maintain a restriction on the numbers of licences issued.

In those circumstances, it seems to me, anyone acquiring a hackney carriage vehicle in the Wirral, at any rate after 1985, must be taken in law to have done so in the knowledge that a policy of "de-restriction" might come into effect at some future date, whatever the state of the demand. In those circumstances it seems to me that there could be no reasonable or legitimate, expectation that the "premium value" of the licence would be maintained. Those that paid such a premium (and I have no specific evidence about that) in my view made a business judgment about whether the premium was worth paying, and took a business risk. Those, like Mr Royden himself, who paid no premium, have simply lost the possibility of a future "windfall". In my view in law Mr Royden could not, after 1999, have reasonably or legitimately expected that this "windfall" was protected against the possibility of "de-restriction" under the Act of 1847 as amended.

CC

MarkRGuildford · **Posted:** Mon Apr 25, 2011 2:37 pm

captain cab wrote:

True, but it was countered at 135 & 136 with;

..... In my view in law Mr Royden could not, after 1999, have reasonably or legitimately expected that this "windfall" was protected against the possibility of "de-restriction" under the Act of 1847 as amended. [/i]

CC

That is where the Judge was unsupported by any precedent. He created (made up) a "windfall" class of property not protected by the Act. The Act itself makes no such stipulation. Obviously, at any time the value of ones property can be wiped out by legislative act, that is precisely what the Human Rights Act is there to prevent.

captain cab · **Posted:** Mon Apr 25, 2011 2:49 pm

MarkRGuildford wrote:

That is where the Judge was unsupported by any precedent. He created (made up) a "windfall" class of property not protected by the Act. The Act itself makes no such stipulation. Obviously, at any time the value of ones property can be wiped out by legislative act, that is precisely what the Human Rights Act is there to prevent.

I think he basically suggested that after the 1985 transport act buying a plate was a gamble, prior to that not so.

I don't think that position has changed any.

That being said, I dont think he's saying you cant sell a plate in a delimited market.....its just that no one will want to buy it :wink:

Can you point me to the bit of any act which says a taxi plate is a personal posession?

CC

captain cab · **Posted:** Mon Apr 25, 2011 2:52 pm

captain cab wrote:

MarkRGuildford wrote:

That is where the Judge was unsupported by any precedent. He created (made up) a "windfall" class of property not protected by the Act. The Act itself makes no such stipulation. Obviously, at any time the value of ones property can be wiped out by legislative act, that is precisely what the Human Rights Act is there to prevent.

I think he basically suggested that after the 1985 transport act buying a plate was a gamble, prior to that not so.

I don't think that position has changed any.

That being said, I dont think he's saying you cant sell a plate in a delimited market.....its just that no one will want to buy it :wink:

Can you point me to the bit of any act which says a taxi plate is a personal posession?

Likewise, can you tell me which councils say restriction is illegal?

CC

skippy41 · **Posted:** Mon Apr 25, 2011 2:55 pm

CC you missed out the question can a plate that belongs to and issued by the licencing authority be legally sold on its own

MarkRGuildford · **Posted:** Mon Apr 25, 2011 3:06 pm

skippy41 wrote:

CC you missed out the question can a plate that belongs to and issued by the licencing authority be legally sold on its own

The licence is transferable, and if the licensee can get a premium he is quite entitled to it. All perfectly legal.

captain cab · **Posted:** Mon Apr 25, 2011 3:06 pm

skippy41 wrote:

CC you missed out the question can a plate that belongs to and issued by the licencing authority be legally sold on its own

York vs. Warriner :shock:

CC

skippy41 · **Posted:** Mon Apr 25, 2011 3:19 pm

captain cab wrote:

skippy41 wrote:

CC you missed out the question can a plate that belongs to and issued by the licencing authority be legally sold on its own

York vs. Warriner :shock:

CC

This thread should be very interesting
In the Blue corners TDOs CC in the red The barrack room lawyer

captain cab · **Posted:** Mon Apr 25, 2011 3:41 pm

skippy41 wrote:

This thread should be very interesting
In the Blue corners TDOs CC in the red The barrack room lawyer

lol skip......the guy has a point....the HRA act has moved on since the Royden case as have the courts understanding of its implications.

CC

toots · **Posted:** Mon Apr 25, 2011 3:41 pm

Throw this thread into the Scottish section and things could become really interesting :wink:

MarkRGuildford · **Posted:** Mon Apr 25, 2011 4:04 pm

captain cab wrote:

Can you point me to the bit of any act which says a taxi plate is a personal posession?

CC

Not in the Act, but in case law:

Quote:

In making that distinction, Jonathan Parker LJ, with whom Ward LJ and Harrison J agreed, noted (at [41]) that in licence cases 'the economic interests which derive from the grant of such a licence may fall to be treated as, in effect, rights of property'. The corollary of that reasoning would appear to be that the licence itself is not the 'possession' and that whether the economic interests that flow from it are a possession depends on the facts, one of which may be the marketable goodwill that can flow from the exercise of a licensed trade, in effect, the Van Marle or the Tre Traktörer type of case.

http://www.taxi-driver.co.uk/phpBB2/viewtopic.php?t=8427&sid=1455e118dd166f581d4e70748c9ff4d8

I think there is an Irish case where the judge specifically referred to the premium on a taxi licence as a property or possession. Found it when I first read the TDO page on Royden. Can't lay my hand on it at the moment.

MarkRGuildford · **Posted:** Mon Apr 25, 2011 4:10 pm

toots wrote:

Throw this thread into the Scottish section and things could become really interesting :wink:

I particularly wanted to post this today because I read about Perth de-restricting numbers. Also the Perth Councillor? is quoted as saying that the aim is to nullify the licence premium, i.e. they are deliberately setting out as the policy object intereference with property, it is the plate value itself that they object to, seeing it as a barrier to entry. They have got overconfident because of the Royden case, and admitted what in my view is a deliberate intention to breach the drivers human rights.

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Plate premiums likely are protected by the Human Rights Act

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