Most licensing authorities will have some kind of a policy on convictions relating to applicants or licence holders of a taxi or private hire driver’s licence. These policies set out the individual licensing authority’s expectation in terms of a reasonable amount of time that has elapsed since a conviction.
For example, a convictions policy may state that an applicant for a taxi or private hire licence with a violence related conviction must wait for 10 years after the conviction before they can be considered for a licence. These policies usually make reference to phrases such as “unlikely” to be granted a licence. Increasingly however, convictions policies are being framed in more absolute terms (also known as “bright lines”) using terms such as “will not” be granted a licence. The use of “absolute terms” in licensing policies inevitably raises the question of whether such a policy is binding in their effect and whether, therefore, it fetters the discretion of the decision makers.
In order to answer this question, consideration needs to be given to the legal position in respect of licensing policies. There is often a misconception that licensing policies are equivalent to legislation in that, once it is adopted, it cannot be changed or deviated from. This is not the case. Licensing policies are not strictly binding in nature but instead acts as a guide for applicants, decision makers and licence holders to understand what the licensing authority’s expectation is when it considers the fitness of licence holders. Although licensing policy acts as a guide, it is also the case that licensing authorities should not arbitrarily deviate from their policies but the fundamental and overriding principle remains that licensing policies must always leave room for discretion and deal with each application on its individual merits.
If we consider an example of a person with a conviction applying for a taxi licence. The licensing policy for the licensing authority where this person has applied to states that they do not qualify for a licence due to the fact that an insufficient amount of time has elapsed since their conviction.
Using the example above, in spite of the policy position (i.e. do not qualify for a licence), the licensing authority remains under a duty to determine the application irrespective of their policy position. It is open to the applicant to present their case and evidence in order to persuade the licensing committee/panel to deviate from its policy and grant them a licence. Under these circumstances, the licensing authority will use the policy as a reference or starting point but it must consider the merits of the application before making a decision.
In conclusion therefore, whilst taxi and private hire licensing policies may use absolute terms, these cannot lawfully fetter the decision maker’s discretion because licensing policy is not strictly binding. The licensing committee/panel is duty bound to consider the application on its merits notwithstanding the adverse policy position.