Taxi Driver Online

In respect of the UK Taxi trade the 1998 human rights act first surfaced in the judicial review case of Royden v Wirral council in 2002. It was established in that case that a "Taxi proprietor License" had no monetery value or goodwill other than the fact of a scarcity value brought about by a restriction of licenses. The ruling also established the fact that if a license wasn't subject to illegal interference by the license controler then in conjuction with the previous two observations none of the three principals in the first protocal in Article 1 of the European Convention of Human Rights, were breached.

In future and if time allows I intend to explore the conflict of taxi licensing decisions in relation to our human rights. Apart from Royden the Taxi trade hasn't yet appealed a council decision or condition based on human rights but I think its about time we started scrutinising these conditions more closely and exposing those conditions that are contrary to human rights legislation.

The introduction to the 1998 act is as follows.

HUMAN RIGHTS ACT 1998

1998 CHAPTER 42

Introduction

Royal Assent [9 November 1998]

Human Rights Act 1998, Ch. 42, s. 1 (Eng.)

1 The Convention Rights

(1) In this Act "the Convention rights" means the rights and fundamental freedoms set out in--

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) [Article 1 of the Thirteenth Protocol],

as read with Articles 16 to 18 of the Convention.

(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).

(3) The Articles are set out in Schedule 1.

(4) The [Secretary of State] may by order make such amendments to this Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol.

(5) In subsection (4) "protocol" means a protocol to the Convention--

(a) which the United Kingdom has ratified; or

(b) which the United Kingdom has signed with a view to ratification.

(6) No amendment may be made by an order under subsection (4) so as to come into force before the protocol concerned is in force in relation to the United Kingdom.
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The recent case summary below helps define the status of a license and for our particular purpose a taxi license just in case the ruling in the Royden case hasn't sunk in.

I have highlighted some pertinant comments in the case law below.
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March 2007

R (on the application of Zafra Iqbal Malik) v (1) Waltham Forest NHS Primary Care Trust (2) Secretary of State for Health (2007)

[2007] EWCA Civ 265

CA (Civ Div) (Auld LJ, Rix LJ, Moses Lj) 28/3/2007

ABSTRACT

Inclusion on a medical performers' list does not amount to a "possession" for the purposes of Protocol 1 Article 1 of the European Convention of Human Rights 1950. As such, the applicant's suspension from the performers' list was not an interference with the applicant's right to peaceful possession.

SUMMARY

The applicant doctor was registered on the medical performers' list pursuant to regulation 13 of the National Health Service (Performers Lists) Regulations 2004 and provided services to the Primary Care Trust, the first Defendant. He was remunerated by the Trust on the basis of the number of patients on his list. In 2005 he was suspended from the list, preventing him providing services to his NHS patients. During his suspension he received payments amounting to 90% of his normal monthly contract.

The applicant brought judicial review proceedings challenging his suspension. He argued that his inclusion on the performer's list was a possession within Article 1 Protocol 1 ECHR ("Article 1"), and, by unlawfully suspending him from the list, there had been an unjustified interference with his possessions. He contended that his patient list represented goodwill in his practice which, given that his income was based on the number of patients on the list, had a value that would be diminished by his suspension.

At first instance Mr Justice Collins held that the applicant's inclusion on the performance list was akin to the possession of a licence, and therefore amounted to a possession within Article 1. Having found that the applicant had been unlawfully suspended, the court held that his possession had been subject to an interference contrary to Article 1. While accepting that the applicant had been unlawfully suspended, the respondents appealed the decision that inclusion on a performer's list amounted to a possession.

Held:

Appeal upheld. The inclusion on a performer's list was not a possession as such, an unlawful suspension did not amount to a violation of Article 1. The applicant was seeking to claim a future right of income; however, an individual's monetary loss, in the sense of loss of future livelihood, could not constitute a possession attracting the protection of Article 1 unless based on loss of some professional or business goodwill or other present legal entitlement: R(on the application of Countryside Alliance) v Attorney General (2006) EWCA Civ 817 (2006); Marckx v Belgium (1979) 2 EHRR 330. The applicant had no marketable goodwill as he was statutorily denied from marketing any goodwill in a patients list by the Primary Medical Services (Sale of Goodwill and Restrictions of Sub-contracting) Regulations 2004.

There was no form of existing legal entitlement such as legitimate expectation which would attract the protection of Art 1. Inclusion on a performer's list was not akin to a licence such as to render it an asset for the purposes of Article 1. In any event, a licence in itself may be incapable of being a possession: Legal and General Insurance Co Ltd v Kirk [2002] IRLR 124. Where a possessory right is claimed to some intangible entitlements conferred by a licence or some other form of permission, some additional factor, often in monetary form, is necessary to render it a 'possessory' entitlement as distinct from a legal right. It is the economic rights, including marketable goodwill, flowing from the licence which may amount to possessions. In the present case there were no such additional factors such as to render inclusion on the list an Article 1 possession.


COMMENT (April 2007)

This judgment provides further authority for the principle that a future right to income, without goodwill or other present legal entitlement, is insufficient to amount to a possession attracting the protection of Article 1. However, it also gives guidance as to the status of inclusion on performance lists, indicating that such inclusion in itself is insufficient to amount to a possession: there must be some additional interest, usually in monetary form, which renders it a 'possessory' entitlement.

There is strong domestic and Strasbourg authority indicating that, while goodwill may be marketable, a mere future right to income is not.

While goodwill was held to amount to a 'possession' for the purposes of Article 1 in Van Marle and Ors v The Netherlands (1986) 8 EHRR 483, the case of Marckx v Belgium (1979) 2 EHRR 330 is authority for the proposition that this Article does not protect a future right to receive possessions.

The Appeal Court in the present case placed much reliance on the judgment of the Administrative Court in R (Countryside Alliance) v Attorney General [2005] EWHC 1677 (Admin), which followed Van Marle and Markx in recognising that

"There is a clear distinction in Strasbourg jurisprudence for the purposes of Article 1 between the "valuable goodwill of a business" and the "ability of a person to earn future income."

The first is a possession: the second is not.

The first is marketable: the second is not.

There is no intermediate possession being the livelihood of a self-employed person." [para. 169]

Attempts to distinguish Countryside Alliance from this case on the basis that the former was concerned with the livelihood of a self-employed person, not with inclusion on a performers list which was connected to a professional practice, were strongly rejected. In the present case, the court did not have to determine whether goodwill was present, as the applicant was statutorily barred from having any marketable goodwill in his patients list.

However, they also had to consider whether the applicant had a legitimate expectation to future income, in line with the Strasbourg case Wendenburg v Germany (Application No 71630/01; 6 February 2003).

In that case, the applicants were advocates whose exclusive right of audience in certain appellate courts was removed, resulting in a drop in their earnings. The Court held that the removal of the right of audience was an interference of their Article 1 possession as they had had a legitimate expectation of continuing to enjoy a certain level of earnings. However, the interference was considered justified as being in the general interest.

It is clear that the Appeal Court did not agree with such a "middle position" of legitimate expectation of future earnings, holding such a possessory entitlement to be merely "shadowy" in nature [para. 25]. Rather, it preferred the "surer touch" [para. 26] of the Administrative Court and Court of Appeal in Countryside Alliance which rejected such a middle position, stating that a loss of future income does not qualify unless there is an enforceable claim thereto. As a means of further distancing himself from the middle way of 'legitimate expectation' Lord Justice Auld held that to find a further category of Article 1 possession based on legitimate expectation would "unacceptably blur" the distinction between prospective loss of, and an existing right to, future income [para. 29]. In addition, it would be very difficult to apply in practice.

Nonetheless, the Court did recognise that there are difficulties in distinguishing between marketable goodwill and a (non-marketable) present-day reflection of anticipated future income, in particular as the present-day value of any business will inevitably reflect its future profit-earning capacity. Such difficulties could not, according to Lord Justice Rix, be solved by merely looking at marketability. However, no means of solving this difficulty were offered, as the question did not arise in the present case, goodwill being statutorily denied.

Lord Justice Rix further broke down the element of goodwill, holding that not all forms of goodwill amount to 'possessions'. Where the element of goodwill is based on a person's reputation, this goodwill is personal to the trader, and therefore not marketable. As such, if a person's reputation is damaged, such as to affect the trader's goodwill, the element of goodwill is indistinguishable from a claim to loss of future income.

Mr Justice Collins at first instance had relied on the cases of Crompton v Department of Transport [2003] EWCA Civ 64 and his own ruling in R (Quark Fishing) v Secretary of State for Foreign Commonwealth Affairs [2003] EWHC 1743 (Admin) to conclude that a licence to carry out an economic activity could be regarded as a possession.

On this basis, he concluded that inclusion on a list was akin to a licence as it had an intrinsic value which enabled the doctor to practice. "However, this analogy was rejected as unhelpful", and the cases were regarded as distinguishable: Crompton was held to be of little weight, as the revocation of the road haulage operator's licence would have led to a loss of goodwill in any event, and Quark was distinguished because the fishing licence was transferable with the boat.

"Lord Justice Rix found that licences may be distinguishable from the economic interests underlying it and as such it is the economic interests, not the licence, which amount to possessions: consequently, the analogy therefore broke down."

Rather, he regarded the inclusion on the list as "a matter of regulation, a condition or qualification for performing NHS services, rather than a possession or property right in itself" [para. 73]. Inclusion on the list had in itself no monetary value.

Lord Justice Auld emphasised the need for an intangible asset conferred by a licence to have some additional factor to render it a possessory entitlement.

In most cases, this additional factor would be a present economic value. While recognising that a monetary value cannot always be the "touchstone of a possessory entitlement" under Article 1, the Judge held that, "where the possessory interest claimed is purely a monetary one, how else is it to be identified and valued for the purpose of determining whether there has been an interference with it, and, if so, whether that interference has been justified in the general interest?"

[para. 44]. In support of this proposition, the Appeal Court cited the case of Nicholds & Ors v Security Industry Authority & SSHD [2006] EWHC 1792 (Admin) in which Mr Kenneth Parker QC held that the introduction of licensing criteria for door supervisors which prevented them from continuing to work because of their previous convictions did not deprive them of any rights amounting to Article 1 possessions. He distinguished between licences which have monetary value and are therefore marketable, and those which, while of value to the holder because he cannot carry on licensable activities without it, are not marketable. He held that these latter licences could not be treated as possessions because they did not represent a distinct asset having monetary value.

Irrespective of the above reasoning, there is also a sense in the judgment that the Court felt that the applicant had pursued the wrong route. The Court held that financial remedies were to be found under his NHS contract, not human rights law. Further, unlike the Strasbourg authority Karni v Sweden (1988) 55 DR 157, where a doctor's vested interests in his practice were affected when it was closed down, the applicant retained a right to practise privately, and the suspension did not prevent the NHS contract from continuing. In addition, while suspended he was remunerated at 90% of his previous earnings, which were derived from his patients' list, and the placement of locums ensured that his patients continued to be treated. There was no evidence to indicate that his earnings had been affected by the suspension as a result of any drop in patient numbers.

In allowing the appeal the Court indicated that the boundaries of the rights under Article 1 are not to be expanded in a manner which blurs the distinction between an existing right to future income and a mere anticipated right to future income. Given the potentially limitless intangible entitlements that could be claimed as possessions under Article 1, the Court sought to restrict claims brought under this Article by requiring that such entitlements be grounded in Article 1 by requiring them to possess a ****quantifiable asset.****

Source 1COR Resources

http://www.1cor.com/

One of the main sections in this act as far as we are concerned is section 6.1. This section makes it quite clear that under 6. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. In effect an authority cannot pass conditions or make decisions that are incompatible with the Human rights act. Carlisle is a typical authority that could probably have been successfully prosecuted under this act for their discrimination in respect of their exclusive taxi rank.
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HUMAN RIGHTS ACT 1998

1998 CHAPTER 42

Public authorities

Royal Assent [9 November 1998]

Human Rights Act 1998, Ch. 42, s. 6 (Eng.)

6 Acts of public authorities

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if--

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes--

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In subsection (3) "Parliament" does not include the House of Lords in its judicial capacity.

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6) "An act" includes a failure to act but does not include a failure to--

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

NOTES:


Initial Commencement

To be appointed

To be appointed: see s 22(3).

Appointment

Appointment: 2 October 2000: see SI 2000/1851, art 2.

Amendment

Sub-s (4): repealed by the Constitutional Reform Act 2005,ss 40(4), 146, Sch 9, Pt 1, para 66(1), (4), Sch 18, Pt 5.

Date in force: to be appointed: see the Constitutional Reform Act 2005, s 148(1).
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The worrying thing is this...

I used to be on the coaches. I took a party of solicitors to brussells where by they had an invite to the court itself as guests. As a coach driver as many of you on here prob know you can generally tag along if you want.
I did.

WHAT A F%$£^%^%$^%$%$$%$%^^^^$%^^KING LOAD OF BALLAXE

we are all buggered!!!! uk and europe don't mix!!!! end off!!!

I've posted the arrangement of all sections to the 1998 HRA.

Sections 6-9 entitled "Public authorities" are ones of importance as far as administration is concerned. I have taken the liberty of posting those particular sections in full.

JD
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Human Rights Act 1998

1998 Chapter 42

ARRANGEMENT OF SECTIONS

Introduction

Section
1. The Convention Rights.
2. Interpretation of Convention rights.

Legislation
3. Interpretation of legislation.
4. Declaration of incompatibility.
5. Right of Crown to intervene.

Public authorities
6. Acts of public authorities.
7. Proceedings.
8. Judicial remedies.
9. Judicial acts.

Remedial action
10. Power to take remedial action.

Other rights and proceedings
11. Safeguard for existing human rights.
12. Freedom of expression.
13. Freedom of thought, conscience and religion.

Derogations and reservations
14. Derogations.
15. Reservations.
16. Period for which designated derogations have effect.
17. Periodic review of designated reservations.

Judges of the European Court of Human Rights
18. Appointment to European Court of Human Rights.

Parliamentary procedure
19. Statements of compatibility.

Supplemental
20. Orders etc. under this Act.
21. Interpretation, etc.
22. Short title, commencement, application and extent.

SCHEDULES
Schedule 1 - The Articles.
Part I - The Convention.
Part II - The First Protocol.
Part III - The Sixth Protocol.
Schedule 2 - Remedial Orders.
Schedule 3 - Derogation and Reservation.
Part I - Derogation.
Part II - Reservation.
Schedule 4 - Judicial Pensions.

Regards

JD
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Public authorities

Acts of public authorities. 6. -(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection(1) does not apply to an act if-

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes-

(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In subsection(3) "Parliament" does not include the House of Lords in its judicial capacity.

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection(3)(b) if the nature of the act is private.

(6) "An act" includes a failure to act but does not include a failure to-

(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.

Proceedings.

7. -(1) A person who claims that a public authority has acted(or proposes to act) in a way which is made unlawful by section 6(1) may-

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is(or would be) a victim of the unlawful act.

(2) In subsection(1)(a) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.

(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.

(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.

(5) Proceedings under subsection(1)(a) must be brought before the end of-

(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(6) In subsection(1)(b) "legal proceedings" includes-

(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.

8 Nothing in this Act creates a criminal offence.

(9) In this section "rules" means-

(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court,
(b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes,
(c) in relation to proceedings before a tribunal in Northern Ireland-
(i) which deals with transferred matters; and
(ii) for which no rules made under paragraph(a) are in force,
rules made by a Northern Ireland department for those purposes,
and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.

(10) In making rules, regard must be had to section 9.

(11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act(or proposed act) of a public authority which is(or would be) unlawful as a result of section 6(1), by order add to-

(a) the relief or remedies which the tribunal may grant; or
(b) the grounds on which it may grant any of them.
(12) An order made under subsection(11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate.

(13) "The Minister" includes the Northern Ireland department concerned.

Judicial remedies. 8. -(1) In relation to any act(or proposed act) of a public authority which the court finds is(or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including-

(a) any other relief or remedy granted, or order made, in relation to the act in question(by that or any other court), and
(b) the consequences of any decision(of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining-

(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

(5) A public authority against which damages are awarded is to be treated-

(a) in Scotland, for the purposes of section 3 of the Law Reform(Miscellaneous Provisions)(Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made;
(b) for the purposes of the Civil Liability(Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made.
(6) In this section-

"court" includes a tribunal;
"damages" means damages for an unlawful act of a public authority; and
"unlawful" means unlawful under section 6(1).

Judicial acts. 9. -(1) Proceedings under section 7(1)(a) in respect of a judicial act may be brought only-

(a) by exercising a right of appeal;
(b) on an application(in Scotland a petition) for judicial review; or
(c) in such other forum as may be prescribed by rules.
(2) That does not affect any rule of law which prevents a court from being the subject of judicial review.

(3) In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention.

(4) An award of damages permitted by subsection(3) is to be made against the Crown; but no award may be made unless the appropriate person, if not a party to the proceedings, is joined.

(5) In this section-

"appropriate person" means the Minister responsible for the court concerned, or a person or government department nominated by him;
"court" includes a tribunal;
"judge" includes a member of a tribunal, a justice of the peace and a clerk or other officer entitled to exercise the jurisdiction of a court;
"judicial act" means a judicial act of a court and includes an act done on the instructions, or on behalf, of a judge; and
"rules" has the same meaning as in section 7(9).