Taxi and private hire licensing is one of the most complex areas of public law. This is almost exclusively as a consequence of archaic primary legislation that dates as far back as the reign of Queen Victoria.
The complexity of taxi and private hire licensing is further compounded by the fact that each local authority has been given discretion to set its own policies and procedures which means that different rules and procedures will apply depending on where you are seeking a licence.
The law in brief
Part 2 of the Local Government (Miscellaneous Provisions) Act 1976 places a statutory duty on licensing authorities to only issue a driver’s licence and/or an operator’s licence to those deemed “fit and proper”. The legislation does not define “fit and proper” which is a particular problem for licence holders and applicants given that this is the main criteria against which their licence or application will be judged against.
In addition to this, licensing authorities also have a wide range of powers and discretion when it comes to licence reviews (for example in the case of convictions or other disciplinary matters).
Under section 61 of the Local Government (Miscellaneous Provisions) Act 1976, a licensing authority can:
“…suspend or revoke or (on application therefor under section 46 of the Act of 1847 or section 51 of this Act, as the case may be) refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds:—
- that he has since the grant of the licence
- been convicted of an offence involving dishonesty, indecency or violence; or
- been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this Part of this Act;
- that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty; or
- any other reasonable cause.
In addition, a licensing authority can revoke or suspend a driver’s or operator’s licence with immediate effect. This means that the normal procedure where, the execution of a decision is delayed until after the appeal period has expired (or until the outcome of an appeal has been settled), does not apply.
There is different licensing legislation in place for some areas of the country but on the whole the effect of the legislation is the same as the above.
Licensing Committees (Panels)
In most cases, disciplinary issues involving licensed drivers and controversial applications will be referred to a licensing committee (or panel as some refer to it as). Committees are made up of local councillors who have delegated authority to hear and determine applications for new licenses and reviews of existing licences.
These committees operate in a quasi-judicial way. This simply means that these committees have the same powers and are governed by the same procedures as if they were a court of law or a judge. The consequence of this is that a licensing committee is obliged to objectively determine facts and draw conclusions from them so as to provide the basis of an official action such as to refuse an application or to revoke a licence. This also includes a duty to provide clear and comprehensive reasons for decisions they have reached.
Decision making by these Committees is largely driven by its local licensing policy. These policies will stipulate, for example, the licensing authority’s licensing processes, fitness criteria and assessment for licence holders and applicants. An important aspect of local licensing policies is their “relevance of conviction” policies.
It is a well-established common law principle that public bodies, including licensing authorities, should not arbitrarily deviate from its policies and only do so in exceptional circumstances and where they have provided clear reasons for doing so.
When you are called to appear before a licensing committee, it is also important to understand with who the burden of proof lays. In general terms, the burden of proof is usually on the person or party who brings a claim in a dispute. In the case of a review of your licence (i.e. suspension, revocation or refusal to renew), the burden of proof will be with the licensing authority to prove that you are not a “fit and proper” person. Conversely, in the case of a new application, the burden of proof will be on the applicant to prove that they are indeed a “fit and proper” person.
The importance of legal representation
As I have mentioned and hopefully begun to illustrate above, navigating taxi and private hire law can be a mine field due to the legal complexities but also each licensing authority has its own rules and policies.
Proper and competent legal advice and legal representation at an early stage can often lead to better outcomes for licence holders and applicants. This is particularly important when appearing before a licensing committee because proper legal representation can greatly assist the likelihood of a favourable decision which will negate the need for lengthy and expensive appeals.
Licence holders and applicants are at the mercy of locally elected politicians when attending a licensing committee hearing. In an ideal world, committee members are all very well trained and experienced to make important decisions about the fitness of drivers and operators. Often however, the level of training and competency varies across the country.
The reality is that a wrong decision can be devastating for licence holders and applicants. Not only will such a decision have a big impact on the livelihood of licence holders and applicant, such a decision can also have reputational implications for operators and individuals. The latter can be particularly serious if you want to apply for a licence in a different local authority area at some point in the future.
In my experience, a well prepared, presented and thorough case before a licensing committee more often than not leads to a positive outcome for licence holders and applicants. This is because, despite the committee members being essentially politicians, when they sit on a regulatory committee, such as a licensing committee, they are governed by specific legal and procedural obligations and rules.
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Taken from the May 2018 PHTM edition. This article was written by Stephen Mccaffrey, Head of Kings View Chambers & Taxi Defence Barristers.