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BIRMINGHAM CITY COUNCIL
REPORT OF THE DIRECTOR OF REGULATORY SERVICES TO THE LICENSING COMMITTEE
15 JUNE 2011
ALL WARDS
THE POTENTIAL IMPACT OF STOCKTON-ON-TEES BOROUGH COUNCIL AND FIDLER, HUSSAIN AND ZAMANIAN ON PRIVATE HIRE LICENSING IN BIRMINGHAM
1. Summary
1.1 The principle of operating a fleet of hackney carriage vehicles to undertake pre-booked journeys without an operator’s licence is well established and in recent years the problems caused when such activity take place on a large scale have been highlighted by events in the North East of England.
1.2 The latest ruling in respect of Stockton-on-Tees Borough Council and Fidler, Hussain and Zamanian delivered on 8th October 2010, clarified the situation and effectively established that the driver of a hackney carriage does not commit an offence if he undertakes pre-booked jobs within another local authority’s controlled district.
1.3 This report seeks to inform members of the potential impact of the ruling for Hackney Carriage and Private Hire Licensing in Birmingham.
2. Recommendation
2.1 That representations be made by the Chair of the Licensing Committee to the Secretary of State for Transport firstly, highlighting the potentially negative impact of the decision in the Stockton case on public safety and the ability of a Local Authority to take effective enforcement against hackney carriage drivers licensed by other licensing authorities. Secondly, emphasising the urgent need for taxi legislation to be modernised to reflect changes in the industry.
2.2 That officers be instructed to contact neighbouring West Midlands local authorities to seek reciprocal agreements to enable drivers licensed by other licensing authorities to be required to appear before this Committee for breaches of licensing conditions.
3. Background
3.1 There are two distinct classifications for vehicles licensed to carry eight passengers or fewer on a hire and reward basis and each has its own separate licensing legislation dictating how the vehicle can be used. In simple terms, a hackney carriage, or ‘black cab’ is the classic ‘taxi’. It may actively ply for hire in the area of the council with which it is licensed; or stand for hire on a designated rank within that same area. A private hire vehicle must be pre-booked through a private hire operator; it cannot be hailed in the street, or from a rank, or otherwise made available for immediate hire.
3.2 In Birmingham there are two radio systems operating fleets made up exclusively of hackney carriage vehicles. Neither business holds a private hire licence with at least one of them operating vehicles from both Birmingham and Solihull as a matter of routine and having done so for many years. It has never been suggested that any offences are committed by virtue of this method of operation and whilst difficulties have occasionally arisen, the proprietors have tended to take a co-operative stance in their dealings with the Birmingham City Council Licensing Service and the number of journeys undertaken by out of area vehicles has in any case been kept low, because of a voluntary policy of sending a Birmingham driver to Birmingham jobs and a Solihull driver to Solihull jobs wherever possible.
3.3 What began as a regional issue in the North East of England, now threatens to become a national problem. Matters were brought to the attention of licensing officers outside of the North East, by the matter of Newcastle City Council and Berwick-upon-Tweed Borough Council in November 2009. Newcastle challenged Berwick’s Licensing Policy by way of Judicial Review, because large numbers of new hackney carriage licences were being issued for vehicles and drivers, who were then choosing to work exclusively in Newcastle taking pre-booked jobs with private hire firms, rather than plying for hire within the boundaries of Berwick-upon-Tweed in accordance with their licences.
3.4 The resulting judgment established that there was a duty on a licensing authority to take into account the intentions of the applicant before issuing a new hackney carriage licence and concludes as follows:
59. Following the handing down of my judgment in draft I heard Counsel on the appropriate form of relief that I should grant. In my judgment the appropriate relief, and the relief that I therefore grant, is by declaration as follows:
(i) In the proper exercise of its statutory discretion under section 37 of The Town Police Clauses Act 1847 a licensing authority is obliged to have regard (a) to whether the applicant intends that the hackney carriage if licensed will be used to ply for hire within the area of that authority, and (b) whether the applicant intends that the hackney carriage will be used (either entirely or predominantly) for private hire remotely from the area of that authority.
(ii) A licensing authority may in the proper exercise of its discretion under the said section 37 refuse to grant a licence in respect of a hackney carriage that is not intended to be used to ply for hire within its area and/or is intended to be used (either entirely or predominantly) for private hire remotely from the area of that authority.
(iii) In determining whether to grant a licence under the said section 37 a licensing authority may require an applicant to submit information pursuant to section 57 Local Government (Miscellaneous Provisions) Act 1976 in order to ascertain the intended usage of the vehicle.
3.5 The significance of the Stockton case is that rather than challenging the Licensing Policy of the Authority that issued the licences, which once again was Berwick-upon-Tweed Borough Council, Stockton took action against an operator and two of his drivers. The Stockton case was inextricably linked to the situation that led to and resulted in the decision on Berwick-Upon-Tweed
3.6 The resulting case not only went against Stockton, but also succeeded in clarifying the legal position of hackney carriage vehicles undertaking booked jobs outside of their own licensed area. In simplistic terms, the decision was that no offences are committed by either the operator or the driver so long as the job is pre-booked.
4. The Repercussions of the Stockton Case for Birmingham
4.1 The significance of the ruling in this case has not been lost on the trade and it is clear that regionally the impact is starting to be felt by some local authorities. A notable example is Telford, where it has been reported that many local private hire drivers have sought, or are seeking, hackney carriage licences from Shropshire Council, which they will use to undertake prebooked jobs in the area controlled by Telford and Wrekin Council.
4.2 At present the numbers of hackney carriage drivers from other areas seeking to work in Birmingham appear to be small, but enquiries about this subject are increasing on a daily basis from operators, drivers and holders of ‘foreign’ hackney licences wanting clarification as to what they can and can’t do in Birmingham. Clearly, identifying how many vehicles may be involved with any accuracy will be problematic, as Birmingham has no jurisdiction over the drivers and our operators are under no legal obligation to keep records of the hackney carriages they have used, or to inform us of the numbers as they recruit.
4.3 Where drivers licensed by other authorities are concerned we are advising them to contact their home authority for advice as to what they may, or may not do under the terms of their licence. Where the enquiry comes from one of our licence holders, we are advising them that no offence is committed if a hackney carriage driver undertakes a booked journey outside his own licensed area, but any attempt to ply for hire, stand on a rank, or otherwise make the vehicle available for immediate hire would be an offence. Where such offences take place within the Controlled District of Birmingham, the Licensing Enforcement Team will seek to take appropriate action.
4.4 The consequences for public safety are potentially serious, with vehicles and drivers from the authority issuing the licence operated remotely and beyond the control of that authority. The authority in which the drivers and vehicles operate in turn has no control over the type, size, age, colour, or condition of the vehicles used and no authority to require the drivers to answer to Committee for any behaviour issues that come to light. Authorised officers may prosecute where specific offences are identified, but the authority enforcement officers can exercise over vehicles and drivers from another licensing authority is limited.
4.5 The impact on funding for licensing in Birmingham could be equally serious, if private hire drivers licensed in Birmingham choose to take out hackney carriage licences elsewhere, then the income which funds licensing could be seriously reduced. If a further logical step is taken, licensed operators could switch to an exclusively hackney carriage fleet and they wouldn’t need an operator’s licence. Reducing further both income and the level of control exercised by this authority over the ‘taxi’ trade in Birmingham.
4.6 Officers have seen evidence that a Shropshire based licensing consultant is actively canvassing private hire operators in Birmingham and drawing their attention to all the possible ramifications of this case, so the likelihood is that it is no longer a question of whether this will become a serious problem for Birmingham, but when.
4.7 Opportunities to mitigate the effects of this problem are limited, but officers will engage with neighbouring authorities in order to encourage them to seek assurances that new applicants for hackney carriage licences intend to use them to a significant effect in the home authority area before granting. They will also call for an extraordinary meeting of the Regional Taxi Licensing Forum to discuss this problem.
5. Implications for Resources
5.1 This work is undertaken within the resources available to your Committee.
6. Implications for Policy Priorities
6.1 The contents of this report relates to one of the key aims of your Committee as identified in the Council Business Plan 2011+ namely to improve standards of licensed people, premises and vehicles in the City.
6.2 At present there is a moratorium on the issue of the hackney carriage vehicle licences which was agreed by Committee in September 2008. This policy was reviewed in September 2010 and extended for three years subject to another demand survey taking place before the expiry of that period.
7. Implications for Equality and Diversity
7.1 No specific implications have been identified.
DIRECTOR OF REGULATORY SERVICES
Background Papers: nil
_________________
Kind regards,
Brummie Cabbie.
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