captain cab wrote:
John,
I dont think I agree with you, or sussex for that matter.
I think the lawmakers in 1985 knew exactly what they were doing, there is no black and white gauge for significant unmet demand, therefore each case must be treated on its own merits.
I think it should be remembered that section 16 has two clauses, Clause (A) and clause (B). Clause (A) was the original amendment to section 37 of the town police clauses act, Clause (B) was submitted by the lords after lobbying on behalf of the Taxi trade. Clause (B) wasn't part of Government thinking.
The legislation was designed to promote competition, the significance of Clause (B) seemed to be overlooked by all concerned. It only became apparent how negative the clause was when people started to engage in legal action.
The Judiciary constantly questioned the impracticality of clause (B) in section 16. One judge stated "how can you define a positive from a complete negative".
Even the Department of Transport initially didn’t have a clue on what advice to give about Clause (B).
I'm afraid I have to disagree with your opinion that the lawmakers knew what they were doing. I think there is ample evidence by way of case law, to support the opinion that they certainly did not know what they were doing. I am still of the opinion that clause B in section 16 slipped completely by them.
Just for the record here’s what clause A removes in section 37 of the 1847 Town police clauses act.
(a) As if in section 37 the words "such number of" and "as they think fit" were omitted.
This removed the right of Councils to limit proprietor’s licenses.
However, because of the Lords intervention a further clause was included, which went on to say.
And as if they provided that the grant of a licence may be refused, for the purpose of limiting the number of Hackney carriage licenses are granted, if and only if, the person authorised to grant licenses is satisfied that there is no significant demand for the services of Hackney carriages within the area to which the licence would apply) which is unmet.
Now, you say that the Government knew what they were doing when they inserted clause (B). I put it to you that Clause (B) was an amendment put forward by the House of Lords which was brought about by the lobbying of the Taxi trade. Clause (B) was not part of Government thinking when they introduced the white paper nor was it part of their thinking in the draft bill.
Therefore, I beg to differ with your statement that lawmakers knew what they were doing.
If you really do think it was sound Law making, here are some quotes from some of our most eminent legal minds.
1986 Judge Whitely presiding over the Fareham case.
Councils have been placed in a difficult position it is clearly the intention of the legislation that Hackney carriage operators become subject to increased competition.
1986 Mr Justice Webster presiding over the Gravesham case.
The transport act 1985 made radical changes affecting all forms of public transport and the manifest policy of the act was to remove restraints and allow market forces to take their course.
1987 Lord Woolf, Great Yarmouth case.
The requirement that was placed upon an authority was to be satisfied about a negative. A matter which created difficulties from an Authorities point of view.
3/85 the very first circular issued in November 1985 by the Department of Transport sought to clarify certain aspects of section 16. However, it soon became apparent that the information contained in paragraph 28 of that circular was incompatible with the law. When circular 4/87 was issued, it did away with the advice in paragraph 28 of circular 3/85.
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Very much like the trade itself, each area is different so laid down criteria that might suit rural cornwall would be of no use to manchester.
The topology of each area is different but normally areas can be defined in two categories, either urban or rural. The burden on a local council is to prove there is no demand for taxis in their area, which remains unmet. What evidence a council uses to demonstrate that negative is entirely up to them but the burden of proof is the same in Manchester as it is anywhere else in the country.
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it may well throw the whole thing to the courts in manchester, but perhaps not in other areas.
I don't know about Manchester because I understand the next issue of licences may be substantial. I also don't know if it will be easier to prove there is a demand, which remains unmet in urban areas rather than rural areas.
I think it will be very difficult for any market research company to conduct a seven or fourteen day survey and define where latent demand does or doesn't exist. To define latent demand you have to work on the job 365 days a year, you can't just come along for two weeks in every two years and say no latent demand exists, it is not only impractical it is also impossible.
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must everything in this trade be black and white or clear cut, is this a manchester thing?
The only thing that requires being black and white, is the law under which we operate. We can't ask for anything more than that can we?
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as for the draft guidance for local authorities, the trade will get an input to this, so again nothing is certain.
I have no doubt that the trade will seek to influence the Governments thinking on the draft guidance. However, I don't believe the trades submissions will influence the Government in any way shape or form.
I expect the draft guidance will reflect the Governments view on exactly what they have said in their submission. The direction in which way the Government wants councils to move is very clear, I expect the advice will reflect that.
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the government have been very clever, they have basically told licensing authorities that they have everything in there posession to operate a good taxi service, get on with the job or else.
I don't know how you arrived at that assumption Cap. It appears to me that the Government is saying remove restriction on numbers, or in three years time we will do it for you.
Best wishes.
John Davies.