One of my drivers.... took an interest in the Berwick situation.... and during his spare time between jobs.... jotted down some of his
thoughts..... I just thought I would share them with you...
You are concerned that Berwick (on Tweed?) are issuing HCV licenses and drivers licences wholesale by post, when the vehicles are intended to be used for PH work only outside the LA boundary, often a distance away; with no intention of (and are not) being used as HCVs at all.
The law appears to be as follows:
SECTION 16. Transport Act 1985
HACKNEY CARRIAGE LICENSING: CONTROL OF NUMBERS:
The provisions of the Town Police Clauses Act, 1847, with respect to Hackney
Carriages, as incorporated in any enactment (whenever passed), shall have effect:-
(a) As if in Section 37, the words "such number of" and "as they think fit" were
omitted; and
(b) as if they provided that the grant of a licence may be refused, for the purpose
of limiting the number of Hackney Carriages in respect of which licences are
granted, if, but only if, the person authorised to grant licences is satisfied that
there is no significant demand for the services of Hackney Carriages
The 1847 Act:
S37 Commissioners may licence hackney carriages
And with respect to hackney carriages, be it enacted as follows:
The commissioners may from time to time licence to ply for hire within the prescribed
distance, or if no distance is prescribed, within five miles from the General Post Office of the
city, town, or place to which the special Act refers,(which in that case shall be deemed the
prescribed distance,) such number of hackney coaches or carriages of any kind or
description adapted to the carriage of persons as they think fit.
(See further, in relation to a licensed taxi, licensed under this section, providing a local
service under a special licence: the Local Services (Operation by Taxis) Regulations1986, SI 1986/567. - not seen this)
S38 What vehicles are to be deemed hackney carriages:
Every wheeled carriage, whatever may be its form or construction, used in standing or
plying for hire in any street within the prescribed distance, and every carriage standing upon any street within the prescribed distance, having thereon any numbered plate required by this or the special Act to be fixed upon a hackney carriage, or having thereon any plate resembling or intended to resemble any such plate as aforesaid, shall be deemed to be a hackney carriage within the meaning of this Act; and in all proceedings at law or otherwise the term “hackney carriage” shall be sufficient to describe any such carriage: Provided always, that no stage coach used for the purpose of standing or plying for passengers to be carried for hire at separate fares, and duly licensed for that purpose, and having thereon the proper numbered plates required by law to be placed on such stage coaches, shall be deemed to be a hackney carriage within the meaning of this Act.
The 1847 Act as amended therefore reads:
S37 Commissioners may licence hackney carriages (As amended by s.16 of the 1985 Act)
And with respect to hackney carriages, be it enacted as follows:
The commissioners may from time to time licence to ply for hire within the prescribed
distance, or if no distance is prescribed, within five miles from the General Post Office of the city, town, or place to which the special Act refers,(which in that case shall be deemed the prescribed distance,) hackney coaches or carriages of any kind or
description adapted to the carriage of persons as they think fit. The grant of a licence may be refused, for the purpose of limiting the number of Hackney Carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of Hackney Carriages
North Devon case extract:
The statutory framework in which that de-regulation (or as it is called in the
vernacular of taxi-licensing “delimitation”) is contained within section 37 of the
Town Police Clauses Act 1847, as amended by section 16 of the Transport Act of
1985. This provides:
The statutory provisions are important. It means that a licensing authority has no
power to refuse to grant a licence unless it is satisfied that there is no significant
demand which is unmet. Absent material upon which it could be satisfied, it
would therefore be unlawful for a council to refuse a licence.
This dispute arises out of the difficult position in which the North Devon Hackney
Carriage Owners Association has been placed as a result of the amendment to the
1847 Act by the Transport Act 1985. Many councils have proceeded on the basis
of the pre-1986 situation. Prior to the coming into force of the 1985 Act, the local
council licensing authority would form its own view so as to enable taxi drivers to
earn a decent living and to accumulate capital representing the value of their
business. The licensing authorities were accustomed to limiting the number of
licences granted. Taxi drivers were happy as a result to know that, by dint of their
hard work over the years, building up their clientèle and relationships with
customers (as is common particularly in remote country areas) they would have
something either to pass on to their children, or to be able to sell.
But the 1985 Act changed all that because, absent any basis for saying that there
was no significant demand which was unmet, anybody who came along who was
qualified to drive a taxi could apply for a licence and the licensing authority would
have no power to refuse it. However, councils continued to limit the amount of
licences and did not conduct a survey to ascertain whether there was any
significant demand which was unmet.
Brentwood v Gladden:
You expressed concern over this case.
The paragraph numbers are those in the judgement.
1. MR JUSTICE COLLINS: This is an appeal by way of case stated by District Judge
Gray, sitting at Grays in Essex. He had before him five informations laid by the deputy
town clerk of Brentwood Borough Council against Mr Gladen (the respondent), each in
identical terms relating to different dates. It is therefore only necessary to read one of
them, which was that he:
"On 16 December 2002 did knowingly operate a Ford Mondeo as a
private hire vehicle within the area of Brentwood Borough Council being
a controlled District under Part II of the Local Government
(Miscellaneous Provisions) Act 1976 without having a current Operators
Licence under section 55 of that Act."
The district judge acquitted the respondent of all five charges, and it is against that
acquittal that the prosecutor now appeals.
(NOTE: it is not alleged in this report that the HCV was from another area in this case, nor was alleged that the HCV was used solely as a PHV)
6. Section 37 of the 1847 Act requires that a hackney carriage should be licensed, and
section 38 defines what are to be deemed to be hackney carriages, which essentially
are:
"Every wheeled carriage, whatever may be its form or construction, used
in standing or plying for hire in any street within the prescribed distance."
11. Part II of the 1976 Act is careful throughout to distinguish what is required for those
who have hackney carriage licences and for those who simply deal in private hire. But
it is also clearly recognised that hackney carriages can be used for the purposes of
private hire. So much is clear from section 67 of the 1976 Act,
25. The difficulty with that is that section 67 does not provide an authorisation for
anything. It simply provides that it is unlawful to charge more if you use a hackney
carriage for a private hire than would be permissible were it being used as a hackney
carriage. It does not provide for the authorisation of anything. It simply recognises that
it is not unlawful to use hackney carriages as private hire vehicles.
It is clear the judge was not expressing doubt as to his judgement when he adds his final comment, he was talking to counsel who had made an inaudible comment, pertaining (probably) to costs. The decision is quite unremarkable and fits the scheme of the Act.
Yates v Gates
An unlicensed driver drove an HCV. He allowed (undercover) 2 council employees to accompany his passengers, without express consent the one with the other. He was charged with allowing other passengers to be carried, and with driving an HCV without the appropriate licence.
Unsurprisingly it was decided that the absence of the illuminated hire light is no defence. It made no difference that the HCV was not plying for hire at the time the passengers got in.
Hawkins v Edwards 2KB 169 1901
I set out the full case reference as, although indexed, the case is not included in the 'Book' CD.
This was an appeal from a magistrates court.
An HCV (horse and trap) was used to carry out a PH contract. The “plate” was covered up, by means of a board in specially constructed grooves, apparently used regularly. The driver was not the licensed proprietor / driver.
A bye – law provided that the “plate” should remain unobstructed.
The proprietor was charged under the bye – law. The unlicensed driver was not charged under the 1847 Act, the proprietor was not charged with allowing unlicensed activity. Presumably this was a test case.
The ratio of the decision of Lord Alverstone (the then Lord Chief Justice) is: “every wheeled carriage which is in fact from time to time used in standing or plying for hire is to be deemed to be a hackney carriage for the whole of the period during which it is so from time to time used, ....”
The 1976 Act:
It was thought that there was a mischief in not having PH licensed. Drivers were using cars considered dodgy. Operators were unscrupulous, and so on.
There was (and are) considered to be no large numbers of suspect dodgy HCV operators, the licenses issued to the drivers have historically kept such abuse in check.
The Act was designed to licence PH vehicles in such a way that the vehicle (plate) did not give a windfall to the license holder, hence there is no restriction on numbers. In addition there is no artificial commercial boundary. If licence conditions (fitness etc.) are met then there is a free trade situation.
The inability of HCVs to operate outside an artificial political and administrative boundary did not reflect demographic behaviour, or reflect commercial sense.
It is not contended that heavy goods vehicles in e.g. Denbigh could deliver to London Leeds and Chester, but not pick up there for onward delivery elsewhere. Neither can a PH firm be so restricted, whatever vehicle it uses.
Current LA boundaries are derived from the 1972 Local Government Act, the old UDC and RDC system was archaic. When, e.g. Merseyside was considered as a unit it seemed logical that the whole should be one administrative area, that was thought monolithic so the boroughs were created. This does not make a social or demographic unit. The centre of Liverpool City is “town” to those living in south Sefton, Southport is “town” to those in Churchtown.
Additionally the 1947 Act did not control “journeymen” (Victorian usage for PH trade). It was quite permissible to contract a coach for a journey to Brighton by prior arrangement with a carter who was not a hackney proprietor. Such PH operations were subject to general mercantile law, whether common law or statute.
The advent of compact small VHF radio enabled PH firms to expand and meet a commercial need not fulfilled by LAs, which restricted the issue of HCV licenses, and which were (are?) not equipped or able to make commercial decisions as the number of taxis (in the generic sense) that should operate. The Act followed in due course.
Contiguous political and administrative areas should agree that because a PH operator is competent to have a business not restricted by its political boundaries they should each agree on competency criteria for licences; if not then they are incompetent. The licensing regime is revenue neutral. It is a bureaucratic, or political, problem that Sefton and Liverpool cannot agree that PH drivers should have a common knowledge test for example. The solution is not more control per se. The 1976 Act does not confine a PHV to the area of its licensing body; it is incumbent on the licensor to consider if the licence conditions may be appropriate to areas of operation, as well as political boundaries. PH work is only incidental to an HCV. Although it is surprising that e.g. Mersey Cabs and Sefton radio circuits do no co-operate.
It is difficult to see how an LA could say that it can issue a licence without accepting responsibility for the licencee having an area of operation larger than its administrative area.
There may be other issues, the logic that appeared to be suggested when the recent “survey” report locally seemed to suggest that if the HCV trade did not have a balance (?) the remedy was possible delimitation. The transport and choice advantage of an availability of HCVs appeared secondary. Unexplored is the exploitation of drivers, for example. So far as I can see the people involved in trade matters at any significant level are plate owners or owners of firms. The common method of that part of the trade in earning money is either the rent of vehicles or payments for radio rentals.
Lacunae in the scheme are mostly commercial and bureaucratic, not regulatory. However, the inability sub contract across boundaries governed by the Act would appear to be an omission?
The cases you referred to are unsurprising given the framework of the Act. The “Ardur” case is the oddity, the company owned by Mr Fry seems to have several operators licenses However, that was not the subject of the litigation. The point was not therefore adjudicated.
Outstanding issues are economic (in the main) Business does not want any regulation (but has to compromise with it).
Clearly from the Brentwood case we see that the 1976 Act does not restrict an HCV in relation to PH work, cross border or not. Neither does it prevent HCVs from sub-contracting, clearly a commercial advantage over PH firms. The case does not deal with the Berwick problem, but I suggest simply follows the structure of the Act.
Quite why, e.g. Liverpool and Sefton HCV circuits do not co-operate is beyond me. That there should be contemplated a proposal to outlaw that is commercially gerrymandering, or bureaucratic empire building.
If Berwick will cooperate with operators who find it difficult to license in their own area and issue a licence which (effectively) simplifies other control then it is easier to make money using that route. However, it appears that activity will not stand up to scrutiny using the existing regime:
Conclusion:
I have looked at the email you sent me.
The facts of the 'Gladden' case allege,only, that the HCV was used, not (for example) that it was an out of area HCV, or used exclusively for PH work. I find it difficult to see why the case was bought at all given the plain reading of the 1976 Act.
It can be seen from the above that a hackney is a vehicle used to ply for hire and which is licensed.
A licensed vehicle which does not (and in these cases is not intended to) ply for hire is not within the definition of a hackney as set out above . A licensed vehicle with a Berwick plate not used to ply for hire (legally) does not fall within the definition. It does not have to ply for hire exclusively, it has the privilege of doing both HCV and PH work. However, as defined if it does not ply for hire at all it does not fall within the definition.
Yates v Gates and Hawkins v Edwards deal with different facts.
S37 as amended by S16 of the 1985 Act allows licensing policies to be adopted by an authority within its area. If it delimits it does so in its area, and as with its other obligations it will monitor its actions. The resolution to delimit relates to its area of operation. It is not incumbent to enquire if a licencee out of the area will use an indigenous driver, but wholesale abuse which is known of, or apparent, must cause concern. It seems proper to consider a judicial review.
The case for judicial review is against the LAs failure to apply the 1847 Act (as amended) within its jurisdiction. It is not directed at individual (unlicensed as above) vehicles operating in another area. Adoption of the 1976 Act is not relevant for that purpose. The LA appears (?) aware of the abuse of its policy decision.
Further, as the vehicles are not used as hackneys plying for hire (at all) they are (all) subject to the 1976 Act (where adopted),and are not excused a private hire licence. They are unlicensed vehicles not factually HCVs as they fall outside the definition as set out above.
A concurrent prosecution on this ground may be useful. Presumably by an LA able to show adoption of the Act.
I hope I have made a plausible hypothesis
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