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R v Lincoln City Council ex parte King & Anor; R v Luton Borough Council ex parte Mirza
Court of Appeal (Civil Division)
HEARING-DATES: 2 February 1995
2 February 1995
PANEL: Leggatt, Swinton Thomas, Otton LJJ
JUDGMENTBY-1: SWINTON THOMAS LJ
JUDGMENT-1:
SWINTON THOMAS LJ:
These are renewed applications for leave to move for judicial review which raise identical or similar points and as a result, for convenience, have been heard together. The Applicants were self-employed taxi drivers. On 20 July 1994 Mr King and Mr Cook applied to Ognall J for leave to move for judicial review of the decisions of the Lincoln City Council contained in the letter of 29 March 1994 whereby they refused to renew a hackney carriage licence of the First Applicant, and a decision in a letter of 21 April whereby they refused a similar application by the Second Applicant.
The decisions were made under s 60(1)(c) of the Local Government (Miscellaneous Provisions) Act 1976 on grounds that the vehicle did not satisfy condition 3(3) of the City of Lincoln hackney carriage conditions, in that the taxis were not capable of carrying a person confined to a wheelchair.
On 4 November 1994 Brooke J set aside an order granting Mr Mirza leave to move for judicial review, granted by Hutchison J on 28 June 1994 ex parte. Mr Mirza applied for certiorari to bring out and quash a decision of the Luton Borough Council of 21 February 1994 by the licensing sub-committee refusing his application for replacement of his existing hackney carriage vehicle for a saloon type vehicle of similar age and mileage. He sought certiorari to bring out and quash the policy of the Council which led to the decision, and mandamus to order the Council to grant the transfer of his previous licence to a saloon type car.
Prior to the decisions made in March and April 1994, both Mr King and Mr Cook had been granted hackney carriage vehicle licences by the Council. Their applications for renewal were refused by the relevant committee because their vehicles were not capable of carrying a person confined to a wheelchair.
The facts of Mr Mirza's case are slightly different. He was also a licensed taxi driver. However, on 21 December 1993, his taxi, which was capable of carrying a passenger in a wheelchair, was involved in an accident and was written off. Accordingly, he applied to the Luton Borough Council for a new licence in respect of a saloon car which was not capable of taking a wheelchair.
Both the Lincoln City and the Luton Borough Councils had in force policies which restricted the granting of licences to taxis which were built or modified so as to carry at least one wheelchair-bound disabled person.
The Lincoln policy was contained in a document which stated:
"With effect from 1st April, 1994, all licensed taxi carriages in Lincoln must be London style or similar with wheelchair accessible facilities."
In my view, looking at this documentation as a whole, it is not possible to put the limited construction on the policy of the Lincoln Council which was contended for by Mr Langstaff. It was indicated in the document that there were other vehicles in addition to London black cabs which would be acceptable to the Council, providing they had a wheelchair facility.
In Luton a licence could be granted only if the vehicle met one of the following conditions:
(a) It is a vehicle of the same type and design as hackney carriages licensed to apply for hire in London by the Metropolitan Police; or
(b) The vehicle has been specially manufactured for use as a hackney carriage (or subsequently modified for such use and not used in the interim as a private vehicle); or
(c) The vehicle has been manufactured in a mini-bus style and is capable of seating not less than six and not more than eight people;
(d) If the vehicle is within categories (b) or (c) above, it must carry at least one wheelchair bound disabled person.
Ognall J refused to grant leave to Mr Cook and Mr King on the basis that there was an alternative remedy open to them which was by way of appeal from the decision of the Council to the Magistrates and, thereafter, if appropriate, to the Crown Court. Brooke J set aside the leave granted ex parte by Hutchison J on the basis that the submissions made on the part of Mr Mirza were unarguable. It is now submitted by Mr Langstaff on behalf of all three Applicants that both Judges were wrong and leave should be given.
The following issues arise.
(1) It is submitted that the policies of the two Councils offend art 30 of the Treaty of Rome;
(2) That, as a matter of construction, the Lincoln City Council have no power pursuant to s 60 of the Local Government (Miscellaneous Provisions) Act 1976 to refuse the applications of Mr King and Mr Cook;
(3) That the decision of the Lincoln City Council was perverse; and
(4) That Ognall J was wrong to refuse relief on the basis of the availability of an alternative remedy.
I deal first with the art 30 point. Article 3 of the EEC Treaty provides:
"For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein -
(a) the elimination as between Member States, of customs duties and of quantitative restrictions on the import and export of goods and all other measures having equivalent effect."
Mr Langstaff invited our attention to sub-paragraph (f) and also to art 7. I do not think that it is necessary for me to refer to those in detail.
Article 30 provides:
"Quantitative restrictions on imports and all measures having equivalent effect shall, without prejudice to the following provisions, be prohibited between Member States."
Mr Langstaff submits on behalf of all three Applicants that the effect of the policies adopted by the two Councils, and indeed other Councils in England and Wales, does, or is potentially capable of, discriminating between national and imported goods. Mr Langstaff accepted in substance the proposition so far as the law is concerned set out in para 4.13 of the Respondent's skeleton argument of 21 January 1995.
In that para Mr Calver says that the case of Keck, 24 November 1993, established that if (1) it is not the purpose of national legislation to regulate trade in goods between Member States, even if it restricts the
volume of sales; and (2) the legislation applies to all affected traders in the national territory and affects in the same manner, in law and fact, the marketing of domestic products and of those from other Member States, there will be no breach of art 30. Thus the Court has significantly cut back the extent of the operation of art 30.
Mr Langstaff does not necessarily accept the last sentence of the way that it is there put by Mr Calver, and he stresses the use of the words "and fact".
It is said that the policy adopted creates a preference for goods of local manufacture. It is said that the only vehicles which have been specifically manufactured as a taxi and will fulfil the conditions laid down by the policy, are in reality London black cabs. However, with respect to that submission, it does not seem to me to be correct.
It is clear from the policy documents themselves that the Councils will license other vehicles, some of them manufactured in other EC countries, which are capable of accommodating a person in a wheelchair and will also license vehicles which have been adapted for that purpose. As I have said, looking at the documents as a whole, I do not accept Mr Langstaff's limited construction of the Lincoln policy documents.
In addition to the Articles in the Treaty to which I have already referred, Mr Langstaff invited our attention to the Directive of the European Commission of 22 December 1969 and placed reliance upon it. He also invited our attention to passages in Procureur du Roi v Dassonville [1974] ECR 837, in text to which I have already referred, to Tankstation 't Heukske Vof and Boermans C-401/92 and C-402/92, and Torfaen BC v B & Q Plc [1989] ECR 3865. In my view it is not necessary on these applications to cite again those passages relied upon by Mr Langstaff, although, of course, I have them all well in mind.
It is true, of course, that the policies adopted by the Councils will result in the vehicles being more expensive for taxi proprietors to buy. That does not, in my judgment, in any way offend art 30 in itself.
In R v Metropolitan Borough of Wirral ex parte The Wirral Licensed Taxi Owners Association [1983] CMLR 150, Glidewell J (as he then was) considered a very similar argument to the one put forward by Mr Langstaff in relation to hackney carriages. There were some factual differences between that case and these cases, but those differences are, in my view, immaterial.
It was suggested that the policy of the Wirral Council offended art 30. Glidewell J formed the view that that argument was wholly unarguable. Mr Langstaff, in effect, submits that the learned Judge was wrong to come to that conclusion.
In R v Doncaster Metropolitan Borough Council, ex parte Paul Michael Kelly Harrison J, when considering this point said:
"Whilst it is not necessary to decide the point, my provisional view is that there is no substance in the argument, because the terms of the policy do not refer to any specific vehicle manufactured in this country, but rather to black London-style purpose-built Hackney Carriage with wheelchair facilities. That does not restrict, in any way, the place where such a vehicle is manufactured. It is open to any manufacturer in a Member State to manufacturer such a vehicle and for it to be imported into this Country. Whether they would do so or not is unknown."
Harrison J decided that application on the basis that the Applicant had a suitable alternative remedy.
In R v Birmingham City Council, ex parte Wesson [1992] 3 CMLR 377, a case which appears in the judgment of Brooke J, and a case which did concern quite different facts, Rose J (as he then was) said:
"The mere fact that the measure may lead to a reduction in the imports to the United Kingdom is not ...sufficient to lead to the assumption that Article 30 applies to the measure. ... Measures which apply without distinction to imported and domestically produced goods and not intended to regulate trade in goods, and which do not prevent the import or sale of goods even if they effect the outlets through which the goods are distributed, are not caught by Article 30."
The conditions laid down by the two Councils before they will grant licences apply equally to all producers and manufacturers throughout the Community.
In my judgment, contrary Mr Langstaff's submissions, these policies are not discriminatory policies and do not place other manufacturers outside the United Kingdom at a disadvantage. They are simply designed for the assistance of the disabled. Any manufacturer throughout the European Community can comply with those requirements. I agree with the finding of Brooke J that the submission that art 30 renders these decisions and the policies of the Councils illegal is unarguable.
The construction issue
It is now submitted for the first time, as far as Mr King and Mr Cook's application is concerned (the point not having been taken before Ognall J) that the Lincoln City Council have no power under s 60 of the 1976 Act to refuse the applications made by them for a renewal of their licence.
Section 60 provides, insofar as it is material:
"(1) ... a district council may suspend or revoke, or ... refuse to renew a vehicle licence on any of the following grounds -
(a) that the hackney carriage or private hire vehicle is unfit for use as a hackney carriage or private hire vehicle;
(b) any offence under, or non-compliance with, the provisions of the Act of 1847 or of this Part of this Act by the operator or driver; or
(c) any other reasonable cause.
(2) Where a district council suspend, revoke or refuse to renew any licence under this section they shall give to the proprietor of the vehicle notice on the grounds on which the licence has been suspended or revoked or on which they have refused to renew the licence within fourteen days of such suspension, revocation or refusal.
(3) Any proprietor aggrieved by a decision of a district council under this section may appeal to a magistrates' court."
Lincoln Council purported to refuse these applications under s 60(1)(c) namely "any other reasonable cause". Clearly the vehicles did not come within (a) or (b); the refusal could only be covered by (c). It is submitted that first applications for a licence are distinct from renewals. That is correct. They are dealt with separately in the relevant Acts. Accordingly, it is submitted by Mr Langstaff that an application for a renewal should be treated differently from an application for a fresh licence. Mr Langstaff submits that the section envisages an event or events which have occurred in the year prior to the application for renewal.
I do not myself accept that contention, but even if it be correct then, in my judgment, a change of policy on behalf of the Council could be such an event. It is then submitted that, under (c) "any other reasonable cause" must be construed ejusdem generis with (a) and (b) and the fact that the taxis did not have wheelchair accessibility was not a proper ground for refusing a renewal.
I do not for my part agree that the words "any other reasonable cause" must be construed ejusdem generis with the matters contain in (a) and (b). The phrase "any other reasonable cause" is extremely wide. It would, in my judgment, be an affront to the words used to construe those words ejusdem generis with the limited matters contained in (a) and (b). The failure of the vehicle to comply with a prerequisite lawfully laid down by the Council must, in my judgment, falls within the phrase "any other reasonable cause".
Reasonableness
Mr Langstaff submits that the refusal of the Lincoln City Council to grant licences to Mr Cook and Mr King was Wednesbury unreasonable. It is said that it was perverse of the Council to adopt a policy that all taxis should have wheelchair access. It is stressed that these applications were applications for renewal as opposed to new applications. It is said in particular that there was no evidence to support a need for this condition to be included in the licences and indeed, by reference to the bundle, that there was evidence to the contrary effect.
This policy is one which has been adopted -- and this is common ground --by a number of Councils, and has been considered previously by the Courts. In these cases there are certainly matters on the facts and on the merits of the applications which might be considered by Magistrates, or by the Crown Court if the appeal is pursued. However, in my judgment it is quite impossible to argue that no local Council, applying its mind properly to the problem, could have reached the decision reached by the Lincoln City Council, either in adopting the policy or in refusing the applications made by Mr King and Mr Cook. Insofar as the reasons for the decisions are concerned, the reasons given were plain and clear, namely that the vehicles failed to comply with condition (3).
Alternative remedy
It is accepted by the Applicants that judicial review will not normally lie where there is an alternative remedy by way of appeal from a decision questioned, save in exceptional circumstance. Mr Langstaff submits that such exceptional circumstances apply here.
In R v Chief Constable of Merseyside ex parte Calveley [1986] QB 424, [1986] 1 All ER 257, it was said that "the public law procedure may be invoked where the statutory remedy is nowhere near so convenient, beneficial or effectual as writs of certiorari and mandamus". Mr Langstaff relies on that case and submits that these applications come within the exceptional category because they are test cases; the issues are appropriate for determination on judicial review; the issues which we have mentioned concerning European law arise; and hearings in the Magistrates' Court and the Crown Court would be lengthy and expensive.
In giving his judgment, Ognall J said:
"It seems to me that, applying those words to the facts of this case, it is entirely appropriate that a local Bench of Magistrates and, if necessary, a local Crown Court, should be called upon to consider the reasonable necessity for the conditions imposed by the City Council in this case."
In the light of the conclusions that we have reached on the substantive issues, the question of alternative remedy may no longer be an issue of relevance on these applications. However, it does seem to me that there are important factual matters which will have to be resolved. There are a number of disparate issues.
Accordingly, I would agree with the conclusion reached by Ognall J that, in these cases, there is an alternative appellate remedy created by statute which ought to be given precedence over any attempt to obtain prerogative orders.
In the light of the conclusions that I, for my part, have reached, the question of delay therefore becomes irrelevant for the Court's consideration. For those reasons I would refuse these applications.
JUDGMENTBY-2: OTTON LJ
JUDGMENT-2:
OTTON LJ: I agree.
JUDGMENTBY-3: LEGGATT LJ
JUDGMENT-3:
LEGGATT LJ: On 24 November 1993 the European Court in the joined cases of Keck and Mithourd C- 267, C-268/91 reappraised its approach to the interpretation of the Rules of the EEC Treaty relating to competition and freedom of movement within the Community. At para 16 of the judgment of the Court, it was said:
"... contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States."
The policies of the two Councils with which this Court is concerned are not intended to regulate, and do not regulate, trade in goods within the Community. The policies apply to all traders in the United Kingdom; they affect the marketing of domestic products in the same way as those from other Member States; there is no restriction on importation; and manufacturers in the United Kingdom and in other EEC countries have to fulfil the same conditions in order to produce a vehicle which fulfils the Council's requirements.
In my judgment, in neither of the present cases is there any quantitative restriction on imports capable of constituting a breach of art 30 of the Treaty.
I do not consider that it is seriously capable of argument that the words "or any other reasonable cause" in s 60 of the Local Government (Miscellaneous Provisions) Act 1976 should, supposedly by application of the ejusdem generis rule, be temporarily confined so as to apply only to a cause arising within the currency of the annual licence, the renewal of which is under consideration. Without qualification, the words of the section mean what they say.
Though one can see an argument for not requiring all cabs within a particular area to be accessible to wheelchairs, the difficulties are immediately apparent of requiring some cabs to be constructed or adapted for that purpose but not others. I do not regard it as arguable that, in formulating their policy as they have, either Council acted perversely or without due consultation. Local considerations about the licensing of hackney carriages are best dealt with locally through the statutory appeals procedure.
Accordingly, I agree that both applications for leave to move for judicial review should be dismissed.
DISPOSITION:
Applications dismissed with costs, not to be enforced without leave of the Court; legal aid taxation of the Applicants' costs.
SOLICITORS:
Hughmans; Legal Dept, Lincoln City Council and Legal Dept, Luton Borough Council
_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin
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