Taxi licensing policy quashed
A North West council’s intended use policy for private hire drivers was quashed this week. Philip Kolvin QC explains why.
On Wednesday 7 February, the High Court quashed Knowsley Metropolitan Borough Council's intended use policy for private hire drivers. The case will be of interest to licensing authorities and industry operators alike.
In late 2016 the council noticed an increase in applications for private hire driver licences from outside its area. In March 2017, it adopted a policy which it said was designed to meet this trend. The policy required drivers to sign a declaration that they intended to drive predominantly in the council's area and that they faced non-renewal or revocation of licences if in fact they drove predominantly elsewhere.
The policy was opposed by Uber Britannia Limited, a well-known national operator and Delta Cars, a Merseyside concern. They separately applied to judicially review the policy and, permission having been granted, the case was heard by Mr Justice Kerr in the High Court in Manchester on 6 and 7 February.
The case for Uber presented in court was that the private hire licence is a licence to drive anywhere. It is not confined in any way to the local area. That is made clear by section 75(2) of the Local Government (Miscellaneous Provisions) Act 1976, and by various decided cases including Dittah v Birmingham City Council (1993) and Shanks v North Tyneside Borough Council (2001). The statutory control does not a concern where a driver may drive. It is simply that for each trip the "trinity" of operator's, vehicle and driver's licence has to be in place. When it is in place, the driver has a "right to roam". Furthermore, there is no discretion to refuse a licence to a driver who passes the criteria in section 51 of the Act, including the "fit and proper person" criterion. As the leading cases of McCool v Rushcliffe (1998) and Leeds City Council v Hussain (2002) demonstrate, the criterion is directed at the personal characteristics and qualifications of the driver, not where he might drive.
The council contended that the fit and proper person criterion was an elastic concept, stretching beyond personal characteristics. It argued that a driver who had "failed to show commitment" to Knowsley and the concept of local licensing, might be deemed unfit to hold a licence, given the width of the council's discretion.
Mr Justice Kerr rejected the council's case and accepted the above argument of Uber. He also agreed with a point made by Delta that the licence to drive a vehicle was a generic permission, without geographic control, as opposed to a specific permission, which attaches to a particular premise or place. Accordingly, he quashed the policy.
Delta also took further points: that in adopting the policy the council took into account an immaterial consideration, namely where the driver might drive; that the policy was vague and uncertain in effect; and that it was disproportionate. However, the case was not decided on any of these grounds.
The Court also awarded costs against the council.
Comment
While this was not a difficult case, it was an important one. It underlines that policies are there to guide the exercise of the statutory discretion. They cannot create a discretion which the authority does not have. That lesson applies not only to licensing but across all fields of public law.
Philip Kolvin QC is Head of Chambers at Cornerstone Barristers. He and John Fitzsimons of Cornerstone Barristers acted for Uber Britannia Limited, instructed by Martyn Scott and Hannah Metcalfe of DLA Piper UK LLP.