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Following is a letter from Jim Inch, City of Edsinburgh Council's Corporate Services Director, and the architect and champion of the councils
restriction policy.
I suspect that he failed to run this nugget past the council's solicitor before sending it.
For clarity Inch's text is in bold, my reply normal text. Legal references are in italics.
!!!!! ENJOY !!!!!
Dear all
I write in response to the extraordinary attached letter from Jim Inch. For the purpose of clarity I have interspersed my response to each point he makes in this different font.
Mr J Taylor
Our ref: JI/Taylor
Dear Mr Taylor
SALTERI ET AL - TAXI APPEALS - JIM TAYLOR
I write in response to your email of 26 March addressed to Elected Members of this Council, which was copied to me.
It is extraordinary that Jim Inch has responded to this particular correspondence when it was not written directly to him, and while I am awaiting responses to so many other questions which I have asked him directly and which he refrains from answering. These will become clear in due course.
Whilst your views are a matter for you, and you have a current application pending for a taxi licence before the Regulatory Committee, I consider it is appropriate to provide some clarifying information to you.
With regard to the Court of Session decision dated 23 March 2007, the Council is considering this decision. The Council appealed to the Court of Session following earlier appeals before Sheriffs and then the Sheriff Principal who did not fully address the proper issues. Whilst the Court of Session confirmed that the appeals were properly taken by the Council from the lower court, it found against the Council on different grounds.
It is of course of no consequence what the nature of the appeals decided by the Law Lords was in the Court of Session. Their decision quite clearly was that it was unlawful for the extension of time to be granted to the council to decide these licences, which incidentally overturns the decision of Sheriff Mackey in the 3maxblack case.
Section [14] of the judgement stated "In our opinion this approach is totally flawed having regard to the terms of the legislation. The entitlement of the authority to seek an extension of the period an application to the sheriff should be regarded as a relief to be exercised only in exceptional circumstances. In the present case the appellants had embarked upon a voluntary policy not so much based on supply and demand, although that obviously featured, but rather directed towards section 10(3) which enabled them to refuse an application if they were satisfied that there was no significant demand for additional taxis. Thus, the local authority had determined that their decision-making process should depend upon section 10(3), apparently in every case. This was an entirely voluntary imposition on their procedures which they were not required to carry out."
This decision relates to the particular circumstances in these appeals and need have no material effect on applications currently pending or future applications for taxi licences.
This is just not true. There is a direct link to the remainder of the 40 (41) applications which were all dealt with based on the council's policy to delay consideration of them until the Jacob survey could be published, which we contend once again was always only ever going to return a finding of "no significant unmet demand". It is worth remembering here that the Jacob tender was not the lowest, neither was it the most comprehensive. Indeed Jacobs are renowned for delivering surveys with results of "no significant unmet demand", almost a "niche market" of councils who want to retain caps, some of which have been challenged in court. Indeed this survey will be demonstrated to have been historical, incomplete and based on guesswork.
This is the link to all current and future applications which Councillors may consider at the application stage or await the decision of a Sheriff on appeal.
Isn't it revealing that this sentence matches precisely the statement made by the anonymous "council spokeswoman" in response to Andrew Picken's report in the Evening News on Thursday 29th March? Why was the council reticent to make an open and detailed response in defence of its actions?
The decisions related to the issue of an extension of time for determination and did not deal with the merits of any of the applications. For your information, of the 40 applications received from November 2005, 22 were withdrawn, 12 were refused by Committee on the basis of the then recently affirmed policy and 6 are outstanding.
Nevertheless that my information is that there were 41 applications, the case of 3maxblack was decided by the Regulatory Committee on 7th November 2005, after the time Mr Inch wrongly claims they were received. They were actually received from November 2004.
In the case of the 12 applications refused, the council retained the full fees levied, despite the lack of the obvious costs incurred in a normal granted licence situation of vehicle inspection etc. which do not apply here. We should remember here that the fees charged in Edinburgh are disgracefully extortionate in the first place, a point I have made to the
Council. When you decided to raise the current fee to £875 I wrote to the council to show that the same fee charged in East Lothian was just £79.25.
The clear inference is that City of Edinburgh Council is effectively abusing its powers to levy such a high fee from new taxi licence applicants, albeit a deliberate attempt to stifle demand for new taxi licences. To then retain the full fee from failed applicants is tantamount to theft, taking money for something which the council has not provided.
The applicants who withdrew did so entirely voluntarily upon being advised of the Council's policies regarding the limit on taxi licences and the list of persons interested in obtaining a licence.
In the case of the 22 withdrawn applications, this was little more than council co-ercion. Faced with the council's pre-determined policy to refuse to grant, despite what Jim Inch may believe or tell you, these applicants were left in no doubt that if they pursued with their application it would be denied and they would lose their fee. They were given no choice but to save something from this flawed, almost surreal situation and take some of the money back. Is this how Councils should be conducting themselves in a democracy? However, doesn't this appear to be quite satisfactory in Jim Inch's 1970's restrictive practices view of Council conduct?
The list of interested parties has no provision in Law. No licences can be granted from it in isolation. Notwithstanding this, there is a moral imperative for the council to disburse this list, many of whom have waited for 15 years to be granted their licence. These licences should be granted now.
Applications were not "wrongly denied" by the Committee.
In view of the decision handed down on appeal by Lord Johnston, these eight words are quite appalling. What part of the decision does Mr Inch not understand. In the case of 3maxblack the council, according to the decision, embarked voluntarily on a policy to delay applications until the Jacob survey could be used to show that there was "no significant unmet demand" whereupon the application was denied. As the judges stated, this was entirely a voluntary course of action, based on Jim Inch's advice. It was severely flawed, indeed illegal. According to the Law, all it had to do was consider the licences within three months, then make a final decision within six months based on the information available at the time the applications were made. This was clearly laid down in the decision of the Sheriff in the case of Coyle v Glasgow District Council, and which Jim Inch, as Corporate Services Director must have known about.
In the Court of Session the Council's counsel, QC Armstrong, was asked why the licence applications were not simply refused at the outset. His response was that they could not be have been refused because the Council would have fallen foul of the Coyle decision. This means that on appeal the council would have been shown not to have information to deny any of these licences and they would have been granted by the Sheriff.
All of this grief has been caused by Jim Inch's flawed advice throughout this whole process, his failure to recognise the terms of the Act and the extraordinary lengths he has gone to steer the RC in an illegal direction, all in his stoic defence of a flawed policy of restriction which is anathema to the free market economy we're supposed to enjoy, and which is supported by all major political parties on the council. The consequence of which is that licence plates are being openly sold, although the Act says they're not transferable, for more than a whopping £50,000 each.
(It should be added here that any further defence of the council's flawed policy to restrict taxi licence numbers will only see plate values rocket, making the situation even worse.)
Your second point will be considered by the Council as an FOI request.
I do hope that the costs of all aspects of these cases is included, and reflects both the internal and external costs associated with them. A figure of £15,000 to £25,000 was quoted by "legal experts" in the News report. However, the costs wrongly sought by the council from 3maxblack alone were a huge £15,000. Given the decision it is certain thatall 40 applicants will be seeking a refund of their costs, possibly along with compensation for the opportunity cost of having to wait two years for licences which they should have been granted in six months at the outset.
It will clearly be some time before the real cost of Jim Inch's atrociously poor advice and illegal manoeuvring is fully known.
As you know, your application for a taxi licence falls to be considered by the April Committee, by which point the Committee will have an updated report on demand from Jacobs Consultancy.
I have to confess to being in awe of Jim Inch's stupidity here. What part of the Coyle decision does he not understand? What will it take for him to realise that the council are not entitled to make a decision on a licence application except based on evidence of demand available at the time the application is made? Even to a humble cabbie like me this is a simple concept to grasp. Yet, despite the example set in the Salteri et al cases, where the appeal judges gave the clearest decision about this, Jim Inch is still trotting out the same flawed statements about waiting for information to consider licences. He's dragged the council through 18 months of court cases, where the council was humiliated for its flawed procedures and legal shenanigans, then makes a statement reaffirming the very same conditions which led to it all. This is breathtaking naivety and clearly shows Mr Inch is well past his sell-by date.
In the case of my own application, I asked Mr Inch for information about demand on the 12th November, 2006. I received no answer. I applied on 27th November, 2006. Cllr Wigglesworth went on record then to state that the council was monitoring demand on a month to month basis, yet no demand information was forthcoming. Nor was the source of this effort divulged.
In his report to the February meeting of the RC Jim Inch stated that my licence had been "considered" and the recommendation was to continue the application for consideration at the April meeting when up-to-date information would be available.
I wrote to ask him what "consideration" had taken place". Lo and behold, once again, no response.
Once again, despite the Salteri et al decisions fresh in our mind, Jim Inch is failing to recognise the Coyle decision, knowingly and deliberately prejudicing my case.. You couldn't make this up, could you?
What is also revealing is that since my application I have written a number of times asking what up-to-date demand information the council has, specifically after his February report to the RC. He failed to respond. He failed to tell me what he divulges now, that the council has used Jacobs to furnish it with that up-to-date information. Why the reticence?
Now, this is a particular outrage and begs the following questions:-
When was this update tendered for?
How much does it cost and from which budget will this be met?
If this was a follow on from the 2005 survey, which Cllr Wigglesworth has already gone on record to say was "flawed", where was provision made in the tendering process for this update, and where was it detailed in the final Jacob report?
Given the original flaws in Jacob's survey of 2005, isn't this throwing good money after bad?
Was this update costed into the original tender and was the same criterion a feature of all competitive tenders?
What criteria were set for this?
What quantitive and qualitative information was determined and what methodology was applied?
When was the update survey conducted, by what means and by whom?
Who was consulted about this update, either in the council or in the trade?
Isn't the truth that this is just another example of the disgraceful and devious game Jim Inch plays to stoically defend the council's flawed policy of restricting taxi licence numbers - the level of which has grown by only 20% in my 14 years in the trade while private hire alone has been allowed to increase by over 600%; £592 million has been allocated to trams; extra bus services have been added; nightbus frequency has increased to half hourly; the council's bus company has spent £300,000 launching its taxibus service to compete with taxis; and all while former council leader, Donald Anderson, tells us that Edinburgh's economy is "burgeoning" as shown by the huge growth in the hotel rooms and higher occupancy rates?
It is incorrect to allege that the Council's initial decision to seek an extension of time was "fundamentally to enable the Council to restrict black taxi licences and intimidate members of the public with court action". The initial decision to apply to the Sheriff for the extension of time was to enable the Council to obtain independent, up-to-date information on whether or not there was a significant unmet demand for taxis in Edinburgh and for the Council to consider the policy on that basis. In the event, Jacobs found that there was no significant unmet demand.
We simply do not believe Jim Inch in this. It is clear that he does not understand the terms of the Law he is applying. Even after being advised about the Coyle decision. The consequence is that his game has been rumbled. He knew that the extension of time was illegal but still dragged the matter through the courts. I contend that this is a preferred strategy of his, oft used by his predecessors, albeit in times when individuals were
prepared to be intimidated.
It is clear Jim Inch embarked on the court process because he knew the council has a bottomless purse of tax and licence payers money which could be used as a big stick to beat down opponents. Indeed this appeared to have worked because none of the applicants in the 3 lead cases in Salteri et al were represented by counsel. They simply couldn't afford to be. And his strategy would have worked, had it not been for the diligence of Sheriffs Horsburgh and Liddle, along with Sheriff Principal Bowen who recognised the council's game, it unjustness, and used their legal discretion to put a stop to it.
It is clear to all that, by pursuing the strategy he did, Jim Inch has dragged the council into disrepute while placing the political careers of those who trusted him into jeopardy.
I do not intend to respond to the remainder of your communication.
You've said quite enough Mr Inch.
In summary, the Law simply requires that councils consider licences within three months and give their final decision in six. The decision must be based on up-to-date demand information available to the council at the time the application is lodged. The Law does not provide for the council to embark on a voluntary process of manufacturing the information it requires, as it cannot recreate the precise conditions which prevailed at the time the application fell. This is why any information produced after the fact is irrelevant.
The previous licence applications, indeed all applications, should have been dealt with within the timescale provided for in the Civic Government (Scotland) Act 1982. Nothing else was necessary.
It is for this reason that all 41 applications should be reinstated and considered on the basis of the information available to the council at the time of their applications. This means that these licences are duty bound to be granted forthwith. The same situation applies to my own application.
Finally, it is this aspect of the Law which Mr Inch has difficulty understanding. Taking this into consideration, along with his disgraceful manipulation and contrivance to circumvent the terms and spirit of the Act, Mr Inch, having lost all grasp of reality, should resign immediately.
Yours sincerely
JIM INCH
JIM INCH
Director of Corporate Services
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