The recently published hackney carriage and private hire statutory guidance has introduced, for the first time, a formal definition of ‘fit & proper’.  This is a significant change for new applicants but also existing licence holders.  In this article I will look at the new definition of fit and proper, the guidance on how the new definition should be applied and what the wider guidance on fit and proper means for the trade.

Fit & proper & the law

Before I look at the statutory guidance specifically, here is a quick reminder of the legal basis for fit and proper in the context of for hackney carriage and private hire licensing:

Local Government (Miscellaneous Provisions) Act 1976:

  • Section 51 in relation to Licensing of drivers of private hire vehicles (England and Wales outside London)
  • Section 55 in relation to Licensing of operators of private hire vehicles (England and Wales outside London)
  • Section 59 in relation to licensing of drivers of taxis (England and Wales outside London)

Civic Government (Scotland) Act 1982:

  • Section 13 in relation to licensing of drivers of taxis and private hire cars in Scotland

The statutory guidance

The new statutory guidance is significant.  It is the first such document of its kind for hackney carriage and private hire licensing and its impact will certainly be felt on the licensing of hackney carriages and the private hire sector. 

Unlike other pieces of Government guidance, including the DfT’s best practice guidance, the new statutory guidance places a statutory duty on licensing authorities to adhere to the guidance. 

At paragraph 2.6 and 2.7, the guidance makes it clear that: 

“licensing authorities “must have regard” to when exercising their functions” stating that “Having regard” is more than having a cursory glance at a document before arriving at a preconceived conclusion.   

““Having regard” to these standards requires public authorities, in formulating a policy, to give considerations the weight which is proportionate in the circumstances. Given that the standards have been set directly to address the safeguarding of the public and the potential impact of failings in this area, the importance of thoroughly considering these standards cannot be overstated. It is not a question of box ticking; the standards must be considered rigorously and with an open mind.” 

It is clear therefore from the above, that the Government expects licensing authorities to take the guidance seriously and the recommendations to be implemented unless there is a compelling local reason not to do so. 

The fit and proper test – Would you?

An important aspect of the new statutory guidance is the definition of ‘fit and proper’.  Given the status of the guidance (as explained above), the new definition carries significant weight.  Prior to the new statutory guidance, there was very little consistency in decision making because each licensing authority adopted its own approach, standards and definition of what constitutes a fit and proper person. 

Now however, there is a common standard: 

Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night? 

Referring again to the status of the new statutory guidance, the standards must be considered rigorously and with an open mind according to the statutory guidance. 

“Licensees should not be given the benefit of doubt”

Whilst it is significant that there now exists a formal and common definition of ‘fit and proper’, the effectiveness of a common definition – to raise standards in the sector – will largely depend on how the new definition is interpreted and applied in practice by licensing authorities.  

By setting a common definition of ‘fit and proper’, the Government clearly envisage consistent decision making by licensing.  However, the construction of the new definition suggests a subject approach to assessing whether a person is fit and proper (i.e. “would you allow” & “whom you care”) rather than a more objective standard.  The problem with a subjective assessment is that it ultimately boils down to personal preference and opinion influenced by life experiences and views.  This will inevitably lead to inconsistent approaches.  Worth noting of course that objectivity will not entirely be removed from the ‘fit and proper’ assessment because it should be backed up by a robust licensing policy.  I will look at this in more details later. 

The point I want to make here is that decisions on a person’s fitness to have, or be granted, a hackney carriage or private hire licence is important and carries a lot of weight and therefore it is also very important that licensing authorities get it right.  The new statutory guidance goes in to say at paragraph 5.14:

 “All decisions on the suitability of an applicant or licensee should be made on the balance of probability.  This means that an applicant or licensee should not be ‘given the benefit of doubt’. If the committee or delegated officer is only “50/50” as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence.” 

The position outlined above places the odds against a licence holder or applicant which makes a fair and open minded approach to decision making even more important. 

A review of the licences already issued

The new statutory guidance and decision making might not be limited to new applicants alone.  Since the main driver behind the new statutory guidance is safeguarding through the introduction of common licensing standards, a review of existing licence holders might be necessary.  The Government wants licensing standards raised and safeguarding improved.  It might be that previous conclusions reached on the fitness and propriety of a driver no longer applies under the new standards set out in the guidance.  Under these circumstances, the guidance states at paragraph 3.14 states: 

Any changes in licensing requirements should be followed by a review of the licences already issued. If the need to change licensing requirements has been identified, this same need is applicable to those already in possession of a licence.” 

Admittedly the statutory guidance does not envisage a wholesale review of all licences issued but acknowledge that there might be isolated instances where a licence was issues which would no longer comply with the new standards or where a court overturned the decision of a licensing authority.  In these cases, the statutory guidance expects licensing authorities to review the licence under the new standards. 

Assessment of Previous Convictions

When I discussed the general issue of the ‘fit and proper’ definition, I mentioned that decision making should be underpinned by a comprehensive licensing policy.  Whilst the phrasing of the new definition of ‘fit and proper’ arguably lends itself more towards a subjective approach, a policy document should re-establish the right balance by providing objectivity to decision making.

An important aspect of licensing policy, and one clearly linked to whether a person is fit and proper, is an assessment of a person’s previous criminal convictions.  The statutory guidance includes policy on the relevance of convictions that it expects licensing authorities to adopt in some form.  This policy, also commonly known as a ‘Relevance of Convictions Policy’, stipulates clear boundaries for licence holders and applicants with previous or current convictions.  For some types of offences and convictions, the policy states that no licence will be issued irrespective of how much time as elapsed since the conviction.  For other less serious offences, the policy expects a specified time to have elapsed before consideration will be given to the grating, or continuation, of a licence. 

Relevance of Convictions policies are not new and have been around for many years.  What has changed recently however is what has become known as “bright line” policies that clearly sets firm boundaries for what is acceptable.  

In the past, the boundaries have been less stringent and clear out of fear that such an approach will be seen as fettering the licensing authority’s discretion.  The consequence of this has been a great amount of variation in what was deemed to be acceptable from a ‘fit and proper’ point of view.  These “bright line” policies however clearly sets firm boundaries to overcome the issue of inconsistent decision making.  Although the convictions policy in the statutory guidance recognises the need for some discretion (i.e. “authorities must consider each case on its own merits”), the expectation is clearly set out in the document “recommendations to be implemented unless there is a compelling local reason not to do so.”  The practical consequence therefore is that, unless there is a compelling local reason not to do so, licensing authorities are likely to adopt the measures outlined in Annex A. 

Appeals

A final word on the relevance of the statutory guidance on hackney carriage and private hire licensing appeals. 

I have already discussed the strength of the statutory guidance and Government’s view on local implementation of the measures contained within it.   This clearly must also impact on subsequent appeals following decisions made in accordance with the statutory guidance and its provisions.

The statutory guidance makes an important and significant statement at paragraph 2.8 which states:

“Although it remains the case that licensing authorities must reach their own decisions, both on overall policies and on individual licensing matters in light of the relevant law, it may be that the Statutory Taxi and Private Hire Vehicle Standards might be drawn upon in any legal challenge to an authority’s practice, and that any failure to adhere to the standards without sufficient justification could be detrimental to the authority’s defence.”

This is a significant statement because it gives a court of law clear government instruction as to how it, the courts, should approach legal challenges under the statutory guidance.  From the above, the default position for any legal challenge under the provisions of the statutory guidance is clear, the statutory guidance is of upmost importance and any local deviation from it will be at the detriment of the local authority, without sufficient justification.

Concluding remarks

The concept of ‘fit and proper’ is the cornerstone of hackney carriage and private hire licensing.  As discussed in this article, the new statutory guidance will change, in some cases potentially significantly, the way licence applicants and licence holders are judged on their fitness. 

However, the reality is that the extent of any change will depend on how the new guidance is applied locally.  As I referred to, there appears to be some scope for subjectivity which will inevitably lead to inconsistent decision making. 

As always, Taxi Defence Barristers are here to represent applicants and licence holders with expert legal advice and representation.  If you are facing legal difficulties, please speak to one of our expert lawyers.

Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

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