Taxi Driver Online

R v Liverpool City Council, ex parte Liverpool Taxi Fleet Operators’ Association

LOCAL GOVERNMENT

QUEEN’S BENCH DIVISION
LORD WIDGERY CJ, MELFORD STEVENSON AND WATKINS JJ
4 DECEMBER 1974

Public Authority – Meeting – Admission of public – Resolution to exclude public – Reason for exclusion – Special reason arising from nature of business or of proceedings – Accommodation for public at place of meeting – Lake of accommodation – Reasonable provision made to accommodate public – Unexpectedly large numbers wishing to attend meeting – Resolution by body to exclude all members of public rather than select some to fill available seats – Whether a reason ‘arising from the nature of [the] business or of the proceedings’ – Whether resolution valid – Public Bodies (Admission to Meetings) Act 1960, s 1(2).

A local authority issued a public notice stating that a committee of the authority would meet on a specified date to review the issue of licences for taxi cabs. Anyone wishing to make representations to the committee was invited to attend.

The applicants, who were representatives of most of the taxi cab owners within the district of the local authority, did not wish to make representations to the committee but they did want to attend the meeting and hear the evidence being given.

The room set aside for the meeting had 55 seats and 41 were taken by members and officers of the local authority wishing to sit on the committee or attend the meeting. The meeting excited a great deal of public interest and when it was due to take place there were more than 40 people waiting outside the room.

The committee chairman decided that in view of the numbers it would be impossible either to admit all the public who wished to attend or to choose some people to fill the remaining seats. The chairman also felt that the people making applications for licences should be heard in the absence of those who wished to make competing application.

The committee accepted the chairman’s views and accordingly passed a resolution under s 1(2)a of the Public Bodies (Admission to Meetings) Act 1960 excluding the public from the meeting ‘in view of the limitations of available space and in order that the business of the Committee may be carried out satisfactorily’. At the meeting the committee decided to authorise the grant of an increased number of licences to operate within the local authority’s area.

Subsequently the local authority resolved to adopt the decisions of the committee. The applicants moved for an order of certiorari to quash that resolution on the ground that the committee’s resolution to exclude the public from its meeting under s 1(2) of the 1960 Act was invalid and therefore the proceedings at the meeting were in breach of s 1(1) of the 1960 Act as extended by the Local Government Act 1972, s 100.

Held – The application would be refused for the following reasons.

(i) Both reasons adopted by the committee for deciding to exclude the public were valid reasons under s 1(2) of the 1960 Act. Where a public body had made reasonable arrangements to accommodate the public wishing to attend one its meetings but in the event so many people wished to attend that it was quite impossible to accommodate them all, that would be a special reason ‘arising from the nature of [the] business or of the proceedings’, within s 1(2), justifying a decision of the committee, arrived at honestly and fairly, that the only solution would be to exclude all members of the public. Alternatively the second reason for excluding the public, ie that it was desirable that individual applicants should be heard in the absence of competing applicants, was a valid one (see p 383 h to p 384 b and h j, post).

(ii) The requirement of s 1(2) that the reasons for excluding the public should be stated in the resolution was directory and not mandatory. Accordingly, if the only valid reasons for excluding the public had been to allow applications to be heard in the absence of competing applicants, the fact that that reason had not been stated in the resolution would not have had the effect of invalidating the resolution automatically and in those circumstances the resolution would only be set aside by the Divisional Court if it could be shown that someone had suffered a significant injury in consequence of the irregularity; no such injury had been shown in the instant case (see p 384 d to j, post).

Case referred to in judgments

Liverpool Taxi Owner’s Association, Re [1972] 2 All ER 589, sub nom R v Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299, [1972] 2 WLR 1262, 136 JP 491, 70 LGR 387, CA.

Motions for prohibition, mandamus and certiorari.

This was an application by way of motion by the Liverpool Taxi Fleet Operators’ Association for the following orders:

(a) an order or prohibition prohibiting the respondents, Liverpool City Council (‘the corporation’) and its committees and sub-committees from acting on a resolution of the corporation dated 9 October 1974 affirming and approving a resolution of the Highways and Environment Committee of the Corporation dated 18 September 1974 which related to the issue of taxi cab licences and from issuing and such licences over and above those authorised by the resolutions passed by the special sub-committee of the Environmental Health and Protection Committee of the corporation appointed to consider matters relating to hackney carriage and private hire vehicles on 23 November 1973 and prohibiting the corporation by its committees and sub-committees from taking any steps or making any directions towards the issue of any such further licences;

(b) an order of mandamus directed to the corporation and the Highways and Environment Committee thereof commanding them and each of them (1) to admit the applicants as members of the public to committee meetings of the Highways and Environment Committee when that committee was considering matters relating to taxi cabs except on such occasions as the public were lawfully excluded therefrom; (2) to revoke all such taxi cab licences as had been issued by or on behalf of the corporation pursuant to its resolution of 9 October 1974 approving and affirming the resolutions of the Highways and Environment Committee of 18 September 1974;

(c) an order of certiorari to remove into the court and quash the resolutions of the corporation of 9 October 1974 and further to remove and quash the resolutions of the Highways and Environment Committee of 18 September 1974 relating to taxi cab licences. The facts are set out in the judgment of Lord Widgery CJ.

Charles James for the applicants.
Alan Booth for the corporation.

4 December 1974. The following judgments were delivered.

LORD WIDGERY CJ. In these proceedings counsel moves on behalf of the Liverpool Taxi Fleet Operators’ Association for a variety of forms of relief under the prerogative orders. More especially, and in my judgment central to his motion, is an application for an order of certiorari to remove into this court with a view to its being quashed a resolution of the Liverpool City Council (‘the corporation’) dated 9 October 1974, the effect of which was to authorise the grant of an increased number of hackney carriage licences to operate within the city boundaries.

The substantial ground for the relief sought is that the committee meeting leading up to the decision of the corporation on 9 October 1974 was itself held in breach of the provisions of the Public Bodies (Admission to Meetings) Act 1960 in that it is alleged the public were not admitted to the relevant committee meeting as required by that Act.

There is a certain history to this application. I mention it very briefly because it seems to me to have no real bearing on the issue which is before the court. A very similar matter was before this court, and subsequently the Court of Appeal, in Re Liverpool Taxi Owners’ Association ([1972] 2 All ER 589, [1972] 2 QB 299).

That was a case which again had raised the vexed issue of whether there should be additional hackney carriage licences in Liverpool, this being a matter of very considerable interest to those whose livelihood depends on obtaining and retaining licences to operate such cabs, and indeed to those who already operate such cabs and who wish to be protected against unfair competition by an undue increase in the number.

In the matter which was before the court in 1972 it was laid down that the corporation in exercising their undoubted jurisdiction to grant or withhold the grant of licences were required to act fairly, and in particular were required to give interested parties an opportunity of making representations before any decision in regard to the grant of new licences was taken.

Further intervention by this court occurred as recently as July 1974 because the corporation, being minded to alter the number of hackney carriage incences, and mindful of the directions of this court and the Court of Appeal in 1972 ([1972] 2 All ER 589, [1972] 2 QB 299), had invited representations before embarking on their decision but unhappily had not made that invitation sufficiently all embracing to bring in all those who were interested, and accordingly an application for prohibition in this court on 19 July to prohibit the corporation from acting on the then current resolution was successful because the corporation conceded that it was in the wrong and the resolution then made by the corporation was duly set aside.

It is in the autumn of 1974 that the corporation make their third attempt to deal with this problem and they began by publishing a public notice dealing with their plans. The notice went out on or about 14 August and it says in the plainest terms, it being a notice in the public press, that the corporation are proposing to review the present issue of licences for taxi cabs. It recognises in terms that the corporation are under a duty to hear representations before reaching a conclusion and invites all those who wish to make representations to attend at a meeting of the Highways and Environment Committee to be held on 18 September 1974.

If I may pause there, so far so good. The corporation appear to be following to the letter the lessons which they have learnt, if I may say so without giving offence, in the two previous proceedings before us here. The notice of course came to the attention of the applicants, who are a representation of a very large number of taxi drivers in Liverpool. In the first instance the applicants seem to have been minded to appear at the committee meeting fixed for 18 September and to make representations. But in the end they decided that they would not make representations, but they informed the corporation that they wished to attend the meeting in order to listen to the representations which were made by other people.

So one comes to the meeting of 18 September. It is at this meeting that the resolution was passed, which on adoption by the corporation on 9 October becomes381 the resolution under attack in the present case. On 18 September the room set aside for the meeting of the committee had 55 seats. When those concerned began to assemble it became apparent that there were 22 members of the corporation who wished to sit on the committee on that day, or at least to be present on the day. That in itself was some indication of how keen is the interest in this matter in Liverpool.

In addition to the 22 members of the corporation who wanted seats there were 17 officials. One feels bound to say that seems rather a large number of officials, but it is not for us in this court to decide what was or was not necessary in that respect. There were also two police officers. So of the original 55 sets, 41 were absorbed in that way, leaving only 14 vacant. Those 14 had to serve for the claims of the press, the public and those individuals who were making representations to the committee.

It is not difficult to understand that the number of seats was clearly inadequate for that purpose: all the more so, because when the meeting was about to start there were something like 40 people outside waiting to come in being either members of the public or interested persons minded to make representations or otherwise concerned to be present. There were 40 of them there, coming to deal with a subject on which, as I have said, feelings ran high.

The decision as to what to do in that event fell on Mrs Jones, who was the chairman of the committee, and she tells us in her affidavit what the position was. She said that having regard to the numbers to which I have already referred it was clear that it was not possible to throw the meeting open to members of the public in the ordinary sense of the word. There just was not room for that purpose. Again there was no very obvious way in which individual members of the public could be selected to occupy such seats as there were. This was not a case where there was a public gallery set aside and marked out for use as such, and it was not a case where there was an orderly queue of people from whom the first six or eight, or whatever number it was, could be taken. If there had been an indication to the assembled 40 outside that there were 14 seats, the possibility of an ugly rush was clear enough.

But not only that, in Mrs Jones’s mind there were strong reasons for saying in this case that each person coming forward to make his representations about the issue should be entitled to make those representations to the committee not in the presence of others making conflicting representations. Whether that was a sensible point of view or not is not for us to comment on, but I am bound to say that I see no reason at all why that should be regarded as other than a tenable conclusion in the rather unusual facts and circumstances of this case.

Having regard to all those matters, Mrs Jones put it to the committee and the committee agreed that the public should be excluded from the meeting but the press should be allowed to attend. No doubt Mrs Jones thought there would probably be room for the press, and this on the face of it, it may be, was a perfectly sensible compromise. But be that as it may, the committee adopted Mrs Jones’s suggestion on those lines and the resolution makes reference to that fact. It is resolution 101 of the relevant committee on the 18 September, and it says:

‘Exclusion of Public. Resolved that members of the public, with the exception of the Press, be excluded from the meeting during consideration of the following item in view of the limitations of available space and in order that the business of the Committee may be carried out satisfactorily.’

That is the reason recorded in the minutes for the exclusion of the public. The contention that these proceedings were irregular, and irregular to the point that the resolution should be set aside, is entirely based on the provisions of the 1960 Act to which I have already referred. Section 1(1) provides:

‘Subject to subsection (2) below, any meeting of a local authority or other body exercising public functions, being an authority or other body to which this Act applies, shall be open to the public.’

The expression ‘body’ there does include, as counsel have been kind enough to agree, this committee by virtue of the extension of the 1960 Act produced by s 100 of the Local Government Act 1972. So the committee was a body within the meaning of that subsection and thus required to open its proceedings to the public subject to s 1(2) of the 1960 Act, which s 1(2) says:

‘A body may, by resolution, exclude the public from a meeting (whether during the whole or part of the proceedings) whenever publicity would be prejudicial to the public interest by reason of the confidential nature of the business to be transacted or for other special reasons stated in the resolution and arising from the nature of that business or of the proceedings; and where such a resolution is passed, this Act shall not require the meeting to be open to the public during proceedings to which the resolution applies.’

So under s 1(2) it is permissible for the committee to resolve to exclude the public for special reasons stated in the resolution and arising from the nature of that business, that it to say the business of the body or of the proceedings.

The first question I think we have to decide here is whether the public really were excluded or not in this particular case. It is, I think, important to stress that authorities arranging committee meetings and other meetings to which the 1960 Act applies must have regard to their duty to the public.

That means they must have regard when making the arrangements for the committee meeting to the provision of reasonable accommodation for the public. If a committee was minded to choose to meet in a very small room and turned round and said ‘We cannot have the public in because there is no room’, it would be acting in bad faith and it would not be beyond the long arm of this court.

The committee must in the first instance so organise its affairs as to recognise its obligation to the public. But of course if the interest on the matter is unexpectedly great, if the estimates of persons attending are proved to be too low, and if the accommodation reasonably allotted to the public is filled up, then other members of the public will be excluded but not excluded by order of the committee; they will be excluded for the simple reason that no more can get in the space provided.

If that situation is reached, it is wrong to speak of the exclusion of the public at all in the context in which we use the phrase in this case, but in my judgment that was not this case, and I am moved to that conclusion most by the fact that the committee themselves did not regard this as a case in which the public were only turned back because the last seat had gone. The last seat indeed had not gone.

The committee quite deliberately decided to exclude the public, and their conduct must be justified, if at all, under the terms of s 1(2) of the 1960 Act.

Next I turn to consider what was the reason which prompted the exclusion order and we cannot do better than take the account given by Mrs Jones. Indeed I think that is the only source to which one can go. As I read her affidavit, extracts from which I have already given, there were readily two reasons in her mind somewhat overlapping and perhaps slightly confusing each other because they do overlap.

I think she was mindful of the fact that with only a minimum number of seats available there was no practical way in which the public could be selected to come and occupy those seats. Insofar as that was her reason, and later the reason of the committee which adopted her suggestion, I would have thought that was a perfectly good reason under s 1(2).

It would not be a case of a body declining to face up to its responsibility and provide accommodation for the public. It would be a case of a body which found that its arrangements, apparently sensibly made, had been swamped by the number of people who sought to attend. If in those circumstances the committee said ‘The only way out of this is to keep all the members of the public out’, and if they took that view fairly and honestly, then I think that that would be a reason arising from the nature of the business or the proceedings within the meanings of s 1(2).

But, equally, as it seems to me, the second reason which Mrs Jones put forwards is a valid one as well. The second reason, it will be remembered, was that it was desirable that individual applicants should be heard in the absence of competing applicants. That seems to me to be a conclusion which could properly be reached by this committee if so minded, and indeed there is a hint of something rather like that in s 1(3), a subsection to which I need not refer in detail.

Accordingly, if the committee had said either separately or in addition to their first reason that they wanted to exclude the public in order that individual applicants could be individually heard, I would have thought that could be regarded as a special reason arising from the nature of the business or the proceedings within the terms of s 1(2).

So it seems to me that the acceptable reasons were there and that they were the reasons which caused Mrs Jones to give the committee the advice she did and caused the committee to adopt the resolution which it adopted.

The only remaining stumbling block is whether those reasons have been correctly stated in the minute as required by the section. I have read the minute and insofar as the reason was based on lack of available space that reason is mentioned in the minute. But insofar as the refusal of admission to the public was based on the desire to hear applicants individually, then in my judgment that reason cannot be discovered from the terms of the minute itself.

It seems to me that the expression ‘that the business of the committee may be carried out satisfactorily’, is too vague to meet the requirement of the statute where it insists that reasons for this kind of decision be given.

Therefore I would be bound to say that looked at by themselves those words did not adequately show as a reason why the committee thought that individual applicants should be individually heard.

Accordingly, the final question which has to be decided is whether, given adequate reasons, the decision of the committee becomes irregular, whether as a nullity or otherwise by reason of the failure properly to state the reasons in the resolution.

At this point I think that one must distinguish between statutory provisions which are clearly imperative or mandatory and those which are merely directory. In my opinion the requirement that the reasons shall be stated in the resolution is a purely directory requirement. The effect of that is that the resolution does not automatically become a nullity by reason of the failure to state the reasons within its terms.

It stands unless and until set aside by this court, and it would not be set aside by this court unless there were good reasons for setting it aside on the footing that someone had suffered a significant injury as a consequence of the irregularity. No such injury is suggested in this case, and it seems to me therefore that the corporation has perhaps at long last produced a resolution on this subject which is not subject to attack in this court. For the reasons I have given I would refuse the application.

MELFORD STEVENSON J. I agree. I would only add this. I regard it as a possible approach to this case that the phrase in the resolution ‘in order that the business of the committee may be carried out satisfactorily’, although loosely and vaguely drafted, might be read as a special reason set out in circumstances in which the author of the resolution might well need to particularise all the circumstances that are to be gathered from Mrs Jones’s affidavit. Whether that approach is right or wrong, it does not matter because I would agree with the whole of Lord Widgery CJ’s judgment.

WATKINS J. I agree and have nothing to add.

Application refused.

Solicitors: Markbys agents for Layton & Co, Liverpool (for the applicants); K M Egan, Liverpool (for the Corporation).