mancityfan wrote:
The argument in the original letter about conditions on hackney carriage drivers’ licences is one that we have faced on a number of occasions, and one which licensing officers and Mr Button, and some people at the Department for Transport, seek to deny. However, the fact is quite simple: the matter has been tested at Administrative Court level; therefore it is binding on all cases where a hackney carriage driver is purported to have been in breach of his “conditions”.
They quote section 57 of the LGMPA as being a clear indicator that they can attach conditions to a hackney carriage driver licence. This was tested before the Courts in the cross-border case of Bromsgrove –v- Murtagh, where section 57 was mooted as being an empowering section of the legislation. HHJ Kennedy would not even consider the argument, saying that section 57 is merely empowering the local authority to ask questions so that they can decide whether to issue a licence or not.
Section 46 of the Town Police Clauses Act 1847 doesn’t mention conditions of licence at all, nor does it empower a local authority to do it; this was definitely looked at by the Court in the Wathen case. I am fully aware that many councils have on the advice of Mr Button decided to issue joint licences. I can assure you that as far as I am concerned, if a hackney carriage driver is driving a hackney carriage vehicle, conditions attached to a private hire licence will not apply to him, even if it is a joint licence. The Court has held that you cannot attach conditions to hackney carriage drivers’ licences, and therefore to seek to circumvent this decided position could not be held to be sound.
I would ask a return question, which would be: What power is there contained in the legislation to attach private hire conditions of licence to anybody other than a private hire driver? If it had been the intention of Parliament to allow conditions to be attached to a hackney carriage driver licence, they would have done so.
On one further point, let’s be perfectly clear on this: the 1847 Act allows the insertion and writing of byelaws, which have to be approved by the Secretary of State. The reason for this is to generate a piece of legislation whereby if drivers break the rules, they can ben charged with an offence. If you look through the 1976 Act there are any number of sections which specifically detail offences. If you go through the Town Police Clauses Act you will see that all the offences are specified and attached to byelaws. It might be wonderful to think that council officials are empowered to make up the rules as they go along; clearly they are not.
I have to say that since the Wathen case, and the birth of the dual licence which was generated by that case, I have still to see any hackney carriage driver prosecuted for any breaches because, when you issue a summons you have to state to the Court under which section of which Act you are bringing that prosecution. Clearly if it is a breach of conditions, no Magistrates’ Court in the country could ignore the Wathen case because they are bound by the decisions of the Administrative Court and cannot themselves overturn them.
So whilst it might be jolly good fun to force hackney carriage drivers to toe the line by indicating that they are in breach of conditions, you still cannot get away from the clear fact that when it comes to trying to prosecute for any such breach, they are doomed to failure.
All very nice and interesting if and when the council decide to go to court but what would your advise be to the drivers who have already been suspended and the ones that are still under threat of suspension?
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