Plate premiums likely are protected by the Human Rights Act

Sussex · **Posted:** Wed Apr 27, 2011 9:10 pm

MarkRGuildford wrote:

The people who pay the premium, what do they get after they paid that they didn't have before?

Access to a restricted market.

MarkRGuildford · **Posted:** Wed Apr 27, 2011 9:28 pm

Sussex wrote:

MarkRGuildford wrote:

The people who pay the premium, what do they get after they paid that they didn't have before?

Access to a restricted market.

No silly, they get to drive the taxi.

TDO · **Posted:** Thu Apr 28, 2011 12:06 am

MarkRGuildford wrote:

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.

But it was appealed. The Court of Appeal agreed with the decision of Sir Christopher Bellamy in the High Court.

Quote:

European case law has established that premiums resulting from restrictive licences are property protected by the Human Rights Act.

Which case law? You've made numerous posts but haven't cited any case law to substantiate your claim.

Quote:

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

But the case law indicates that there's no interference with property rights on derestriction in that the licence is still retained. The licence premium doesn't amount to property or a possession as regards human rights legislation.

Quote:

It seems that the counsel for Royden wanted to appeal, but Royden didn't probably because of the risk of further costs.

Indeed, but he did appeal, perhaps on the basis that many people don't mind seeing others waste huge amounts of money on wild goose chases to test half-baked theories.

Quote:

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.

I can't see any councils arguing that restriction is illegal per se, although there are clearly legal hoops to be jumped through to implement and retain such a policy. But it's a policy decision whether or not to restrict, either way it's not legal or illegal per se.

Quote:

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

A bold assertion, but you haven't provided a scintilla of evidence to support it.

TDO · **Posted:** Thu Apr 28, 2011 12:10 am

MarkRGuildford wrote:

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.

But he cited plenty of precedents from European law in his judgement and concluded that the property/posession argument was flawed as regards the plate premium.

He found no precedent to support your view, but since you claim there is such a precedent then perhaps you could be more forthcoming?

TDO · **Posted:** Thu Apr 28, 2011 12:16 am

MarkRGuildford wrote:

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.

So what's the hurry if Perth councillors rejected derestriction several weeks ago?

Perhaps you're a bit behind the curve?

TDO · **Posted:** Thu Apr 28, 2011 12:24 am

MarkRGuildford wrote:

Of course Taxi licences and the premium on them are "property"

Quote:

28. Professor Kelly in his treatise on Constitutional law says:-

“Most obviously of all, the constitutional guarantee applies to land and to rights arising from land ownership. It also applied to moveable property and money. Intangible rights are also protected - Article 43:1:2 itself refers to a “general right to transfer , bequeath and inherit property ”, while the guarantee has been invoked in relation to intangible rights created by legislation, such as licences , and by contract ”

29. Thus, it is clear that it is possible to have property rights in a licence which attract constitutional protection. However, the extent of the right has been the subject of judicial consideration.

Gorman v. Minister for the Environment and Local Government [2001] IEHC 47; [2001] 2 IR 414 (23rd March, 2001)
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/cases/IEHC/2001/47.html&query=hackney+and+licence+and+transfer+and+premium+and+property&method=boolean

But your quote is completely out of context as regards the case as a whole. Thie following is more representative of the judgement in the round rather than selectively quoting from it:

Quote:

“...even, if it were established that the making of the Regulations of 1992 resulted in a diminution in the value of the applicants’ taxi-plates this would not as a matter of law amount, in my opinion , to an attack on the applicants’ property rights. Property rights arising in licences created by law (enacted or delegated) are subject to the conditions created by law and to an implied condition that the law may change those conditions. Changes brought about by law may enhance the value of those property rights (as the Regulations of 1978 enhanced the value of taxi-plates by limiting the numbers to be issued and permitting their transfer) or they may diminish them (as the applicants say was the effect of the Regulations of 1992). But an amendment of the law which by changing the conditions under which a licence is held cannot be regarded as an attack on the property right in a licence-it is the consequence of the implied condition which is an inherent part of the property right in the licence.[emphasis added]”

TDO · **Posted:** Thu Apr 28, 2011 12:38 am

Brummie Cabbie wrote:

When the Irish Government paid out compensation to cab proprietors for loss of plate premium value, after they de-restricted nationally, I wonder whether it was through the kindness of their collective hearts in the Houses of the Oireachtas, or whether they were spooked by the European Human Rights legislation?

Somehow, I don't think it was because of their kindness and affection towards cab proprietors!

Actually I think it was. The payments were ex gratia and there was no legal obligation involved.

The report of the hardship panel said:

Quote:

The Panel is aware that, since 1992, the Courts have clarified on a number of occasions that there can be no legal duty on the State to compensate taxi licence holders in relation to open market values of licences.

http://www.transport.ie/upload/general/2879-0.pdf

Anyway, the sums involved were a mere fraction of the licence value, and were only relevant in specific circumstances.

According to this (which I wrote around eight years ago :shock:

) only a few dozen out of a couple of thousand (?) plate holders received anything, and typically the payments were around a tenth of the original licence value.

http://www.taxi-driver.co.uk/compo.htm

TDO · **Posted:** Thu Apr 28, 2011 12:41 am

MarkRGuildford wrote:

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.

On the contrary, I would advise anyone to find something more compelling before wasting money on expensive legal advice.

It looks like you just want someone else to put their hands in their pocket to test your half-baked and ill-informed theory.

Brummie Cabbie · **Posted:** Thu Apr 28, 2011 6:04 am

blackpool wrote:

Whover gave you the idea that customer service suffers in regulated areas ? What a weird idea, think youll find the opposite applies

I would tend to agree with that!!

Brummie Cabbie · **Posted:** Thu Apr 28, 2011 6:08 am

I see a long-time hibernating founder member has awoken!!!

grandad · **Joined:** Tue Apr 03, 2007 11:27 pm **Posts:** 20123

I was under the assumption that when someone paid out these sums of money for a plate, they were in fact purchasing a business vehicle and the plate was attached to that vehicle. The extra value attached to the business vehicle would surly be "goodwill".

Brummie Cabbie · **Posted:** Thu Apr 28, 2011 7:36 am

TDO wrote:

The report of the hardship panel said:

Quote:

The Panel is aware that, since 1992, the Courts have clarified on a number of occasions that there can be no legal duty on the State to compensate taxi licence holders in relation to open market values of licences.

Ah yes; but which Courts?

MarkRGuildford · **Posted:** Thu Apr 28, 2011 11:26 am

TDO wrote:

A bold assertion, but you haven't provided a scintilla of evidence to support it.

1 What is the citation for the Royden Appeal case? You also say later "Indeed, but he did appeal, perhaps on the basis that many people don't mind seeing others waste huge amounts of money on wild goose chases to test half-baked theories.." Do you mean Royden did appeal or didn't?
2 The license premium is property.

Quote:

32....Property rights arising in licences created by law (enacted or delegated) are subject to...
33. Thus the property right invoked by the Applicants in this case is..... recognised as a valuable property right....

Gorman v. Minister for the Environment and Local Government [2001] IEHC 47; [2001] 2 IR 414 (23rd March, 2001)
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean
3 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/AFE5CA ... 042003.pdf
4 Any change to policy must be proportionate to the problem addressed, and compensation is payable for the loss of licence value premium. See (v) above: "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?"
5 It can fairly be argued that a proportionate change in taxi licence numbers to adequately meet demand could fairly be achieved by a demand survey and controlled issue of new plates.

gusmac · **Posted:** Thu Apr 28, 2011 3:17 pm

MarkRGuildford wrote:

Gorman v. Minister for the Environment and Local Government [2001] IEHC 47; [2001] 2 IR 414 (23rd March, 2001)
http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

Since when did an Irish High Court decision apply in England & Wales?

TDO · **Posted:** Fri Apr 29, 2011 12:55 am

MarkRGuildford wrote:

1 What is the citation for the Royden Appeal case? You also say later "Indeed, but he did appeal, perhaps on the basis that many people don't mind seeing others waste huge amounts of money on wild goose chases to test half-baked theories.." Do you mean Royden did appeal or didn't?

What part of "he did appeal" is it that you have a problem with?!?

Seriously though, I'm not sure about the citation, but it defo happened, and it was online at one point, because I recall reading it. It was a good bit shorter than Sir Christopher Bellamy's judgement, fortunately.

Look at this post from six years ago where I refer to the appeal, and also the quote from Derek Cummins of TaxiTalk magazine, who refers to the appeal judges and also the fact that it's a waste of time. And he's very pro-quotas and premiums.

http://taxi-driver.co.uk/phpBB2/viewtop ... 9&start=18

There's also a reference to the appeal here:

Quote:

In this regard, the Court of Appeal followed the ruling of Kenneth Parker QC in R (Nicholds) v Security Industry Authority [2007] 1 WLR 2067 concerning licences for club doormen, and also endorsed the judgment of Sir Christopher Bellamy QC in R (Royden) v Wirral MBC [2003] LGR 290, concerning the issuance of new licences for taxi drivers.

http://www.11kbw.com/articles/docs/HumanRights.pdf

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Plate premiums likely are protected by the Human Rights Act

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