Decisions without discretion – lawful?

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Decisions without discretion – lawful?
By: Anonymous | Published On: 1/03/20 9:02 pm

Hackney Carriage (taxi) and private hire licensing policies adopting an ‘absolute’ approach to fit and proper is becoming increasingly popular with licensing authorities.  This is largely due to the adoption of the Institute of Licensing’s “Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades” which has also been adopted in some form by the Department for Transport (DfT) in its yet to be published “Taxi and Private Hire Vehicle Licensing: Protecting Users Statutory Guidance for Licensing Authorities”.

As I will look at in more detail later in this article, “absolute” terms (also known as “bright line” policies) outlines circumstances in which a licence applicant will “never” be licensed or when a licence holder “will” lose their licence.  This is most prevalent in conviction policies and penalty point schemes.

Licensing policy carries substantial weight in terms of local decision making.  It is a well established fact in law that licensing policy must only be deviated from in exceptional circumstances.  This therefore leaves very little discretion, in some cases none at all, which is contrary to the most basic legal rights of fairness and right to a fair trial.   

In this article I will look at the use of conviction policies and penalty point schemes and consider the lawfulness of these particularly where these polices are framed in absolute terms. 

As always however, we need to consider the legislation first to understand the remit of licensing authorities’ powers.

Law

Outside London, the Local Government (Miscellaneous Provisions) Act 1976 places a statutory duty on licensing authorities to only license people judged to be fit and proper people.

  1. 51 LG(MP)76:

Licensing of drivers of private hire vehicles

(1) Subject to the provisions of this Part of this Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver’s licence:

Provided that a district council shall not grant a licence—

(a) unless they are satisfied

(i) that the applicant is a fit and proper person to hold a driver’s licence.

 

  1. 59 LG(MP)76:

Qualifications for drivers of hackney carriages 

(1) Notwithstanding anything in the Act of 1847, a district council shall not grant a licence to drive a hackney carriage—

 (a)unless they are satisfied

 (i) that the applicant is a fit and proper person to hold a driver’s licence.

 

 Inside London, the same duty exists by virtue of the London Hackney Carriages Act 1843:

S.8 of the LMHCA43: 

8 Registrar to grant licences. At the time of granting any licence an abstract of the laws and a ticket to be given. 

It shall be lawful for Transport for London to grant a licence to act as driver of hackney carriages,. . . to any person who shall produce such a certificate as shall satisfy Transport for London of his good behaviour and fitness for such situation. 

There is also a more general common law discretion for licensing authorities to set their own local licensing policies.  Licensing policies, in effect, provide licence holder with more comprehensive and practical information on how licensing authorities will discharge this statutory duty.  It is within licensing policies that conviction policies and other “fit and proper” criterion is laid out.

Conviction policies

The DfT taxi and private hire licensing statistics for 2018 suggested that 97% of licensing authorities have some sort of adopted convictions policy.

Generally speaking, convictions policies will stipulate a time period a licensing authority will expect to have elapsed since a person’s conviction.  The more serious the offence the longer the time period would be.

As I mentioned above, Hackney Carriage (taxi) and private hire licensing policies adopting a more absolute approach (or bright line) to fit and proper is becoming increasingly popular.  This is in some part due to the Institute of Licensing’s “Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades”.  The IoL’s suitability guidance has largely been adopted by the Department for Transport’s draft statutory guidance for licensing authorities.

Simply put, these bright line policies will stipulate instances where a licensing authority will “never” issue a licence.  The language used is a move away from more traditional approaches where conviction policies used softer language such as “would not normally”.

As I will discuss later in this article, discretion is a fundamental right but the application of bright line conviction policies may not afford licence holders their fundamental rights.  The draft DfT guidance has confused matters.

One the one hand the DfT has made clear its expectations: “The Guidance sets out a framework of policies that … licensing authorities “must have regard” to when exercising their functions… “Having regard” to guidance requires public authorities…to give considerations the weight which is proportionate in the circumstances…It is not a question of box ticking; the recommendations must be considered rigorously and with an open mind.”

This would imply that the DfT’s proposed convictions policy must be adopted unless “truly exceptional circumstance” exist.  The DfT expectations are clearly stated. 

However, the draft convictions policy then goes on to give licensing authorities discretion saying:

“Authorities must consider each case on its own merits, and applicants/licensees are entitled to a fair and impartial public hearing of their application if required.”

On the one hand there is almost a duty to take the guidance as read but the DfT on the other hand gives licensing authorities room for local discretion.  This dichotomy will inevitably lead to some licensing authorities blindly following the proposed DfT conviction policy without considering the merits of the case.  This approach raises important questions concerning proportionality, discretion and a fair hearing.  Can a policy put in such absolute terms be lawful?  In my view, this will certainly be challengeable on good ground but more importantly rob licence holders of their fundamental legal rights.

Penalty Point Schemes

Some licensing authorities operate penalty point schemes.  These schemes exist to deal with complaints, allegations and witnessed incidents of misconduct or infractions of a type which is not considered sufficiently serious in itself to justify a review of a person’s suitability to hold a taxi or private hire driver, vehicle or operator licence, but which may give rise to such concerns if repeated or if regarded cumulatively with other such incidents.

Under a penalty point scheme, once a licence holder is issued with a set amount of penalty points within a certain amount of time, action will be taken by a licensing authority. 

Readers may recall recent strike action by Leeds Hackney Carriage and Private Hire Drivers who were protesting “over plans to revoke their licences if they get six penalty points in a year” known as Leeds City Council’s “six point policy”.

Similar to “bright line” convictions policies discussed above, penalty point schemes that could result in automatic revocations or suspensions also raises a number of legal questions.

There have been several examples of unlawful approaches by licensing authorities operating penalty point schemes.  The most relevant case on the matter of penalty point schemes is the case of R (application of Singh) v Cardiff City Council [2012] EWCH 1852 (Admin).

Cardiff City Council’s penalty point scheme was challenged in the High Court on a number of grounds discussed below in Mr Justice Singh’s judgement.

Whilst the entirety of the claim was not found by Mr Justice Singh, the claim succeeded on the point of lack of fairness.

The council’s penalty point scheme contained a provision of an “…automatic revocation of a licence if 10 points have been accumulated in a 3 year period”.  Singh J commented in his judgement that this approach “…leaves no room for judgment or discretion.”

Whilst he ruled that, in principle, penalty point schemes can be operated lawfully, great care should be taken by licensing authorities to ensure that this enforcement approach is operated fairly where licence holder’s right to a fair hearing is preserved saying:

“…I would note that in my view section 61 does not confer only a discretion. In my view, it includes an element what may be called the exercise of a judgment in particular in subsection (1)(b) which requires there to be any other reasonable cause. It was common ground before me, in substance, for present purposes, that means whether a person continues to be a fit and proper person to hold a driver’s licence.

He continued: “There are three ways at least in which the point can be formulated and was on behalf of the claimant. These three submissions in essence summarise the fundamental defects in law, as I see them to be in the policy of the Council as adopted and applied. The first is that the policy calls for the automatic revocation of a licence if 10 points have been accumulated in a 3 year period. That, on its face, leaves no room for judgment or discretion. 

“ The second fundamental defect is that this means that there is no consideration required, or it would appear perhaps even permitted by the policy of the underlying facts which lay behind the earlier imposition of points which a driver may have. That may, as the case of Mr Singh illustrates, be some years before the decision of the Committee which eventually decides to revoke a licence. 

“The third fundamental defect, in my judgment, again accepting the claimant’s submissions in this regard is that the policy does not recognise that the outcome even of concluding that a person is not a fit and proper person is not necessarily revocation, it may be under section 61 the sanction of suspension.”

Importance of discretion

It is a long established statutory principle that licensing policy cannot, and should, not fetter the discretion of decision makers.  These simply means that whilst licensing authorities should be guided by its licensing policies and not arbitrarily deviate for it, the overarching principle that each case should be determined on its own merits remains.

Determining each case on its merits means that it should be within the remit of the licensing authority to consider the individual circumstances of a case and to come to a conclusion that may be different from their own policy.

Whilst ‘absolute’ or ‘bright line’ policies must allow for discretion in decision making, the trade cannot rest on their laurels.  Licensing authorities take seriously misconduct by licensing holders and applicants and should only consider exercising their discretion in exceptional circumstances.  This is why legal advice and representation is very important.

Rights of appeal

A decision by a licensing authority to refuse, revoke or suspend a hackney carriage of private hire licence carries a right of appeal. 

Appeal hearings are hearing de novo which means that the appellate court (Magistrates’ Court) will hear and deal with the appeal afresh or as if the case had not previously been heard nor decided.

The advantage of a hearing de novo is that it gives the appellant second and fresh opportunity to present their case. In practice, the appellate court will hear the case afresh (de novo) and from this will draw its own conclusions and judgements on the case and its merits. It will then compare its own conclusions and determinations to that of the licensing authority’s, which will form the basis for a decision on whether the licensing authority was wrong (or not). If the appellate court determines that, in its view, the licensing authority’s decision was wrong, it should overturn the decision.

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