Taxi Driver Online

Knowsley Council’s Private Hire Vehicle Policy is unlawful

Licensing-Lawyer.co.uk

The High Court has ruled that a policy requiring Private Hire Drivers to work “predominantly” in the area of the Knowsley licensing authority is unlawful.

Knowsley Borough Council had amended its Private Hire Vehicle Driver’s Policy so as to require applicants for PHV drivers licences to sign an undertaking that they would work predominantly within the Knowsley controlled district. The policy created a presumption of refusal of a PHV driver’s licence to any applicant who did not demonstrate a bona fide intention so to work. Kerr J quashed the policy as unlawful on the ground that section 51 of the LGMPA 1976 provides that a driver’s licence “shall” be granted to an applicant who is a fit and proper person and has held an RTA driving licence for at least a year. Where he ultimately drives is immaterial.

It is well established that, provided vehicles and drivers used to fulfil a PHV booking are licensed by the same authority as licensed the operator, the actual journey undertaken may lawfully pass through, or may even begin and end in, an area wholly unconnected with the licensing authority. Knowsley council nonetheless sought to persuade the High Court that an applicant who had little or no intention of working within its boundaries was not a fit and proper person within the terms of section 51, because he would be undermining a principle of “local licensing” that has been recognised as central to the private hire regime provided by the 1976 Act. The judge rejected Knowsley’s submission as contrary to the decided cases on the meaning of “fit and proper person” within that section (McCool v Rushcliffe (1998) and Leeds City Council v Hussain (2002)), namely, that the ‘fit and proper’ criterion relates to the personal characteristics and qualifications of the driver.

Generic licence

The judge agreed with Delta’s submission that a PHV driver’s licence is generic in nature – i.e. it is a licence to drive private hire vehicles generally, rather than to drive a specific vehicle. It follows that the enquiry made by a licensing authority as to an applicant’s fitness and propriety is an enquiry restricted to his fitness to drive private hire vehicles in general. The locations in which a PHV driver might lawfully work are not relevant to that enquiry.

Other grounds

Once the intended use policy was held to be unlawful, it was not necessary for the Court to rule on the other grounds of appeal raised by Delta. The judge, however, indicated (without ruling on the point) that it was strongly arguable that the policy was a disproportionate measure to meet the council’s expressed aims of vehicle/public safety; but he remarked that he was yet to be persuaded that the policy was so uncertain of meaning as to be unenforceable.

Judicial review brought by Uber Britannia limited

A judicial review of Knowsley’s policy, brought by Uber on overlapping but by no means identical grounds, was heard at the same time as Delta’s appeal, and was equally successful in its principal arguments.

Licence conditions: geographical considerations?

Although Delta and Uber were ad idem with regards to their primary contention that Knowsley’s intended use policy was ultra vires, the two firms parted company on one potentially important issue – which, although it was academic in the instant case, the judge said might arise for decision in future litigation. The issue surfaced in oral argument, which tested the limits of whether it would be lawful to import geographical considerations into PHV licence conditions. Delta accepted that an appropriately worded condition which promotes the principle of local PHV licensing (as identified by the courts) is capable of being lawful; Uber, on the other hand, argued that such a condition would in all cases offend the principle in Padfield because it would curtail the ‘right to roam’ – which, it was Uber’s contention, is fundamental to the legislative scheme for private hire vehicles given by the 1976 Act.

Kerr J expressly demurred from deciding the point, but towards the end of his judgment he commented that he was “fortified” by what he had heard in thinking that a fit and proper person might, in principle, be required to abide by a condition (otherwise lawful) imposed in order to meet any perceived erosion of localism.


Gerald Gouriet QC and Charles Streeten appeared for Delta Merseyside Limited

Instructed by Keith McKinney of Aaron & Partners LLP

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IDFIMH

There has got to be a good reason as to why the council choose the driver's license route rather than the vehicle license route.

But I'm struggling to fathom out what that reason is.

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IDFIMH

Kerr J expressly demurred from deciding the point, but towards the end of his judgment he commented that he was “fortified” by what he had heard in thinking that a fit and proper person might, in principle, be required to abide by a condition (otherwise lawful) imposed in order to meet any perceived erosion of localism.

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

Is that a posh way of saying that it could be done, but just wasn't this time? And/or could be applied to vehicles?

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IDFIMH

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Justice for the 96. It has only taken 27 years...........repeat the same lies for 27 years and the truth sounds strange to people!

Does it matter?

If a Knowsley driver has to drive a Knowsley vehicle, then if the driver is restricted as regards area then the vehicle is automatically restricted too. Ditto if the vehicle had been the license restricted.

So either/or, or both, makes no difference. I think.

I took it as meaning that some kind of wider geographical restriction could be imposed, but not just confined to local authority boundaries.

I'm guessing, for example, that the judge could be suggesting that it's sensible that a PHV licensed in Knowsley should be able to work anywhere on Merseyside, because it's part of a large densely populated urban area.

But, on the other hand, maybe the judge is suggesting that PHVs licensed in Birmingham but working in Brighton lots of the time is just daft.



Nothing to do with the fact that that's how they both currently operate?

Maybe Delta happy with PHVs restricted to working Merseyside, say, because that's how they work, but happy to exclude PHVs from a wider area, because that's how Uber wants to work? It suits Uber to have no geographical restriction at all, because that suits its business model.

I think there is a large element of kettle calling the teapot black here after all Delta have demonstrated a great enthusiasm for sending drivers to a neighbouring licensing area in the past

I think this ruling helps no one and perhaps another issue which needs sorting out in new national taxi and Ph legislation

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

I think it does, in the same way in some areas hack numbers are restricted yet drivers not.

Imposing restrictions/conditions on a car is completely different to imposing restrictions/conditions on a person.

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IDFIMH

I don't think 'maybe' comes into it, I think that's a certainty.

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IDFIMH

See what you mean about hack numbers restricted - if more badges are issued then they can still be accommodated, assuming there's still spare capacity in the vehicles.

But if there's a desire to confine the trade to a certain geographical area then I can't see what difference it makes.

If the *cars* are confined to Knowsley then because they have to be driven by Knowsley-badged drivers then the drivers are automatically confined to Knowsley too.

If the *drivers* are confined to Knowsley then the cars are automatically confined to Knowsley because they can only be driven by Knowsley drivers.

So if either drivers or vehicles are confined to Knowsley then the end result is the same, because the other licence becomes confined too, because the two must be used together.

Can't see how in practical terms the end result would differ depending on whether the restriction was placed on cars or drivers.

I think its so much easier to put conditions on a motor rather than a person.

Good example is dress codes (person), to must be a certain colour (motor).

I don't think laws allow councils to insist on a certain dress code, whereas we see numerous examples of councils saying a car must be this colour.

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IDFIMH

Would certainly be interesting to compare decided cases and the reasoning used to test your theory and conclude whether there is some truth in it.

Or whether there are real differences which might explain the different approaches.

For example, if I was a council officer then although I might think a dress code for drivers and a colour code for cars equally desirable, then perhaps the latter is more viable because it's easier to enforce, and I wouldn't have to work nights to do so.

By the same token, I suspect the trade more likely to challenge a colour code for cars than a dress code for drivers. Because if you have a two-year old silver car that you intended keeping for five years, then you're going to kick up a fuss if the council wants an all-white fleet. But if all that's needed to conform to a dress code is a pair of £8 chinos from Primark then that's obviously a different matter. (Although the way some drivers talk about dress codes you'd think they were being asked to wear a £500 suit.)

Of course, that's not really directly related to your theory and the courts' thinking on such matters, but who knows what thought processes are at work?

But there are so many factors in play - like the relatively small number of decided cases, the likelihood of the trade actually challenging stuff through the courts - that constructing a definitive theory would be difficult, and it would be easy for others to pick holes in it. Might be a good idea for a PhD thesis on licensing law though, but I doubt if there would be many takers.

But as far as the current case is concerned, I'm quite sure the case was decided on the basis that it wouldn't make a blind bit of difference whether the policy was imposed on cars or drivers.

I think the issue is cars don't have human rights.

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IDFIMH

Well played - hadn't thought of that aspect

Really must get round to actually reading some cases one day

But way back in the mists of time, when I actually read one or two judgements, seem to recall arguments based on human rights law relating to vehicles - "peaceful enjoyment of property", I think the phrase was.

Take it that one didn't run much?

But just shows what a nonsense human rights law has become - original intention to stop people being tortured or imprisoned without reason, or to ensure a fair trial, but now lawyers using them to argue against drivers using WAVs or to effectively give them the right to drive a taxi wearing hoodies, ripped denims and dirty trainers. Of course, that's not to say using such arguments are successful, but a bit much even to use human rights laws in that way in the first place.