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Address to the Regulatory Committee
Wednesday 10th October, 2007
1. Introduction
Why are we here?
This re-hearing of the licence applications in respect of 666maxblack and maxblackhack was brought about by the Council ceding the appeal before Sheriff McPartlin on one narrow aspect of the appeal ground that, in making their decision, the Council acted contrary to natural justice – based on the fact that the details of the Jacob Interim survey, and the other material, was not made available to us until after the original hearing on April 18th.
This second hearing is highly irregular given that this second bite at the cherry for the Council to consider the applications is far outside the statutory six month period proscribed in the Act for such consideration – a strict requirement recently reinforced in the appeal cases of Salteri et al.
It is also irregular given that the Sheriff allowed the appeal to be ceded without hearing the full evidence. In essence he based his decision on incorrect material fact, exercised his discretion in an unreasonable manner and acted contrary to natural justice. Of course, his decision could have been appealed; however we felt it better to play this game because, should the matter be brought back before the courts a second time, the Council’s weak case will have been considerably weakened further.
Let us declare at the outset that while we desire to be granted these licences at this time, we are largely indifferent to the outcome of today’s hearing.
If the licences are granted then we can all move on. Council policy may be changed, commercial justice can be brought to Edinburgh’s taxi trade, driver’s can gain real control of their working environment and we can all get on with providing our customers with the best, more readily available service.
If these licence applications are denied again, the case will return to the Courts and, after hearing the full evidence (illuminated by the testimony under oath of those Councillors who considered the applications, and other Council officials), the Sheriff can decide the matter. We would welcome this outcome.
2. Declaration of known conflict of interest
A number of Councillors have played a key role in formulating and applying the Council’s policy to restrict taxi licences:-
Former Cllr Phil Attridge
Former convener of the RC, he was a bus driver employed by the Council’s own bus company, Lothian Buses. His direct personal conflict of interest was clearly to promote the business of his employer, while applying the policy of restricting taxi licences.
Cllr O’Donnell
Former convener of the RC who was instrumental in denying 40 applications based on the flawed Jacobs 2005 survey and who left office to pursue his private hire interests. The evidence suggests that he gained considerable advantage for private hire by restricting the number of taxis competing with them.
Cllr Keir
Current convener of the RC and, once again, a bus driver employed by Lothian Buses. He is apparently charged with re-hearing these applications, despite the fact that his professional interests clearly conflict with the interests of those making these applications.
Cllr Cardownie – A long standing member of the Council whose private hire interests he represents applied for 50 PHC licences in June. It is the applicants’ understanding that these licences were curiously fast-tracked for issue, raising the spectre of his key influence in matters pertaining to taxi and PH licensing.
This is evidence that former officials, current officials and, because of key influence from other members of the Council, the Council itself, lack integrity and are not fit and proper to administer the licensing of taxis in a fair and proper manner in Edinburgh.
Note:- The above is not fully inclusive and absolute.
3. Appeal Grounds
A. Decision based on incorrect material fact
Let’s look at the material used to consider these applications.
Don’t we all really know that if any of this material was truly valid we wouldn’t be sitting before you today, the Council would be pressing home its advantage and we would be in a Court of appeal, with you winning it?
But it isn’t, we aren’t, and you aren’t.
(i) Jacobs 2005 survey
Can we confirm that you have all fully appraised yourselves of the details of this Survey and the independent critique document we have supplied to you?
• The survey was acknowledged to be flawed by Cllr Wigglesworth - who asked in front of witnesses to go on record and no such record was minuted – and who then used it to deny 40 licences
(Although subsequently asked about this, no satisfactory explanation has been forthcoming from either Cllr Wigglesworth or Corporate Services on his behalf)
• Our appeal will bring it under legal scrutiny
(ii) Jacobs 2007 Interim Survey
• The only material available to the Council attempting to assess demand since the original survey
• Doesn’t stand up on its own
• Summary straight line analysis demonstrates it covers less than three 100th’s of one per cent of the taxi market
• Ignores call and hail work - limited stances, days and times covered
• It’s a convenient, unrepresentative snapshot for a Council predisposed to deny licences
• Instigated simply because the Council received applications – procedures for continuous monitoring of demand as laid down in the Taxi Action Plan sidelined
• Specific narrow brief determined by Corporate Services, designed to yield the required answer of “no significant unmet demand”
• Jacob “knew” the outcome was predetermined and knew what was required of them
• So called expert survey carried out by consultants only independent in that the piper playing the tune (Jacobs) weren’t directly employed by those paying that piper (the Council)
• Illogically, the question was clearly superimposed over the already existing answer of “no significant unmet demand”
• Once again Cllr Wigglesworth stated in front of witnesses that this survey was flawed, that it was only accurate for the stances covered and that there may be demand elsewhere - then used it to deny our applications
(Cllr Wigglesworth sought to get the committee to agree a demand figure of an extra 100 licences; not surprisingly a figure that coincided with the number waiting on the Interested Parties List - which has no provision or status in Law.)
In short, as an instrument to accurately measure demand, this survey has no intrinsic merit.
(iii) Stakeholder Consultation
• Amateurish - neither produced, nor audited independently
• Hastily produced, with clear evidence of poor planning and poor sampling
• Our own follow up survey conducted independently highlights errors in target organisations polled, and dubiety about relevance and contributions of respondents
• Includes two co-operative constituted Taxi Companies that have demonstrated clear bias against issuing more licences
(iv) Taxi Company Statistics
• Not solicited, produced, nor audited independently – irrelevant in Law
• For all we know these could have been produced on a typewriter by a monkey pulling numbers out of thin air
• Ignores the significant hail and stance market sectors
• Central failed to advise us of the exponential rise of taxis on their own radio circuit over recent years and the effect these would have had on customer turnaround
• A biased submission which lacks objectivity proven when their Chairman writes, “…statistics… they clearly demonstrate that there is no significant unmet demand for taxis at the present time”
Consider this pertinent example of how the co-operative constituted Tadio Companies behave with their drivers:-
On Wednesday 19th September licence applicant Gordon Macdonald went to begin his shift. On keying his driver ID into the City Cabs job despatch radio system he was advised that he had been suspended. He hadn’t received any notification of his suspension, neither had his owner. Having worked with City Cabs for over three years, with the same taxi owner, and having never been referred to the committee for any disciplinary or other matter in that time, Gordon had no knowledge of any reason why he should be suspended.
Contacting City Cabs’ office, Gordon was curtly told by the official that complaints had been made against him, but he would not divulge what they were, nor by whom. On that and subsequent calls, Gordon was advised that a meeting was scheduled to be heard and that he would be notified of the result of it. Gordon was denied any opportunity to hear the complaints made against him or to make representations to counter them.
Unable to work the job despatch system, Gordon was rendered unemployed.
There was no explanation of why. We know it was simply because Gordon applied for a taxi operator’s licence and, once his name was published in the Evening news, this precipitate action was taken against him to influence him to withdraw from the application process – a consummate act of vengeance and an attempt to pervert his lawful rights.
There was no thought by City Cabs for his lost income. There was no thought for the ramifications of City Cabs’ draconian action for Gordon’s three dependant children, or his other financial commitments.
Councillors should ask themselves, if this injustice happened to you, wouldn’t you cry foul?
Would you accept that the Council inspired restriction of licences allows petty minded despot taxi company officials to exercise their cartel powers and put you out of work?
NOTE:
It should be noted that this scandalous bastion of 19th Century Mill Owner employment mentality, City Cabs, is privileged to service a major part of the contract for taxi services by City of Edinburgh Council’s Social Work Department.
Is it desirable that such an important contract should be allowed to be operated by a Company which has such a blatant disregard for even the basic decencies of employment rights enjoyed by all other sectors of our society?
And, if such attitudes are prevalent here, how can we be sure that City Cabs is a fit and proper Company to properly serve those who depend on Social Services to ensure that their travel needs are properly met?
In order to meet its obligations, doesn’t City of Edinburgh Council have a duty to ensure that proper practices are adopted in relation to employment and sub-contracting in those companies to which it awards contracts?
In the clear absence of any modicum of adherence to even the basics of employment law rights and commercial decency, we hereby formally call on City of Edinburgh Council to properly investigate this matter and reassess City Cabs’ suitability to service Council contracts.
(v) Jacobs’ summary refutation of the Initial Writ
• Jacobs’ role has never been to accurately establish demand levels
• Jacob undertook no more than the narrow brief designed by the Council to fit their policy to restrict licences
• The Council uses consultants like Jacob to fabricate or fit the answers to achieve the desired result - no more, no less – to add credibility to a pre-determined Council policy to justify and afford plausibility to denying licences
(vi) Conclusions of the Council’s demand monitoring processes
Under the terms of the Act, the Council is required to satisfy itself that it knows what the demand for taxi services is when an application is considered. In the case of our applications, the Council could not possibly be reasonably satisfied that it knew what demand was at the time of the applications, nor as a result of the flawed, inconclusive Jacob’s Interim Survey.
We contend that consideration falls when the application is made. It is illogical for a Council to pick and choose the most appropriate time for its own plans within the six months specified in the Act.
It is true that demand for taxi services varies throughout the year. To make the supposition that the future resembles the past, that future licence applications can be decided on scant historical information, defies logic and is not founded on any rational argument - only on habit.
It is documented in the Dundee case that the Sheriff opined that if Councils desired to restrict the number of operating taxi licences, then they would need to keep themselves fully and continually updated. Indeed, Edinburgh’s Council pursued such a policy on its own and, on the recommendation of Jacob in their 2005 survey, established a Taxi Action Plan to effect this. However, the 2007 Interim Survey was conducted outwith the auspices of the Action Plan, the Council sidelining it in their haste to commission the inadequate and flawed survey specifically designed to allow it to deny these applications, and appear to comply with the Act.
It is illogical to suggest that one snapshot in 2005, followed by a miniscule update in 2007 (less than 3 x 100ths of the taxi market covered - excluding all other competing transport sectors) is sufficient to achieve reasonable satisfaction for the Council that “no significant unmet demand” exists. The onus of proof is on the Council, not on us to prove otherwise.
The weakness in the Council position, a consequence of its policy to restrict taxi licences, is the fallacy that there can be “no significant unmet demand” for taxi services when:
• No new taxi licences have been issued for 6 years while all other transport sectors are increasing
• Driver numbers are increasing
• All other transport sectors – Buses, Taxibuses, PH - are expanding
• Scarcer shift availability is driving up rentals
• Plate premiums are rising, now over £50,000
In short, if there truly has not been any increase in demand over the last 5 years, despite Edinburgh’s burgeoning economy (the second fastest growing European city economy) then there never will be until the Council and the taxi trade stakeholders are embarrassed into relaxing the very restrictions which serve their own vested interests.
This is not how the Act was intended to be applied, a contention we have every confidence will be accepted by a Sheriff.
B. Decision exercised in an unreasonable manner
From the Initial Writ
“… the Respondents failed to meet the test contained in Section 10(3) of the Civic Government (Scotland) Act 1982 in that, on the basis of the information properly before them, the Respondents could not reasonably say they were satisfied there was no significant demand for the services of taxis in their area which was unmet. Accordingly, the Respondents erred in law, based their decision on an incorrect material fact, acted contrary to natural justice and exercised their discretion in an unreasonable manner.”
Doesn’t this say it all?
C. Contrary to Natural justice
Let’s be quite clear that the circumstances leading to this appeal ground were not accidental. It results from a deliberate strategy by Corporate Services which had consciously withheld demand information before, repeatedly throughout and since the application process for these licences.
This is ably demonstrated by Robert Millar’s hasty response on the 27th July to my email of the previous day requesting demand information. In that response he denied me access to current demand information under Freedom of Information. This abuse of FOI was met with another two licence applications on 1st August which await consideration by you.
4. Conclusions
We argue it was always the Council’s strategy and deliberate intent, orchestrated by Corporate Services – headed by Jim Inch, to conduct itself contrary to natural justice. Their objective from the outset was reaffirming their policy; subsequently beating down opposition from applicants by utilising the public purse to drag the process out; financially impoverish anyone exercising their democratic right to apply for a licence and forcing them to end their opposition to the Council’s draconian policy to restrict taxi licences.
The Council is effectively asking the courts to give them unfettered discretion to enforce a pre-emptive policy to prevent applicants having any chance of a fair hearing; the subsequent denial of a licence being a foregone conclusion.
This is achieved by the “loaded dice” cast by Corporate Services producing contrived survey material bought and paid for by the public purse.
The Council look to bring forth apparently plausible information to deny legitimate licence applications in pursuit of its policy to protect its own transport interests (Buses, taxi-buses and trams – all in Council ownership) and the vested interests of existing taxi trade stakeholders.
Taking these applications back into the appeal process will allow the most comprehensive examination of how Councils apply Section 10 (3), particularly those Councils that compete with taxi trades through owning and operating competitor transport systems while restricting competition from the taxi trade – a clear conflict of interest.
Should the Council deny the licences, restarting the appeal process, exercise its renowned policy of using the court system to buy time, and then withdraw from the appeal process at the 11th hour, then its officials should be aware that legal suit will be pursued for the additional costs we will have incurred throughout this unnecessarily extended process, along with compensatory damages for the loss of opportunity to operate the licences that the Council’s unreasonable actions have denied us.
Should these applications be taken back to appeal and licences granted by a Sheriff, then Council officials, elected and unelected, now do so in the full and certain knowledge that the case will be compelling for a full public inquiry into the Council’s conduct in respect of these matters, the wilful abuse of the public purse in pursuit of its strategy (tantamount to perverting the course of justice) and the serious financial implications for applicants because of the Council’s deliberate actions.
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