Taxi Driver Online
http://www.taxi-driver.co.uk/phpBB2/

URGENT; decisions that fetter a council's discretion
http://www.taxi-driver.co.uk/phpBB2/viewtopic.php?f=5&t=17078		 Page 1 of 1
Author:  Brummie Cabbie [ Sun Jul 03, 2011 11:35 am ]
Post subject:  URGENT; decisions that fetter a council's discretion
I need to find the principal authority, regulations or rules on council’s fettering their discretion when making, or more to the point, delegating their decisions to licensing officers.

I need this very urgently for a meeting tomorrow.

Regulations for the conduct of council meetings in which such advice is contained, or the like, would be ideal.
Author:  MR T [ Sun Jul 03, 2011 1:00 pm ]
Post subject: 
You need to look at.. that particular councils constitution... and whether or not it has been updated... and then you need to go through the minutes of that particular committee( let's say licensing) to see what powers have been delegated..... and exactly what they are.
Author:  Brummie Cabbie [ Sun Jul 03, 2011 1:26 pm ]
Post subject: 
MR T wrote:
You need to look at.. that particular councils constitution... and whether or not it has been updated... and then you need to go through the minutes of that particular committee( let's say licensing) to see what powers have been delegated..... and exactly what they are.

OK!!

The facts; scenario . . .

Brum has a policy, which states that any Birmingham licensed Private Hire driver caught and convicted in a Mgistrates Court for plying for hire will have his licence suspended for six months on the first such offence.

Recently, a Birmingham licensed Private Hire driver was convicted of plying for hire; it was his first offence.

After his conviction, he was sent a letter from the licensing department, who have delegated powers from the Licensing Committee in such cases. The letter informed him that due to his conviction his Private Hire driver licence had been suspended for six months.

Now there is also the point that should any licensed driver be convicted of any offence, they must advise the licensing department within a specified time frame of the conviction. And illegal plying for hire is a criminal offence, hence my question on another TDO thread in this vein.

Having received his letter advising him that his Private Hire driver licence had been suspended, he then appealed to the Magistrates Court and won the appeal.

There are conflicting accounts on the reasons that his appeal was successful, ranging from, 'he did not get a fair hearing', 'the committee fettered their discretion and should not have delegated such a power to the licensing department', etc.

A possible change in this policy is on the cards, with first time offenders having their Private Hire driver licence revoked on the first offence.

That to me, would seem less hazardous for the committee, as they would be deciding that the Private Hire driver is not 'fit and proper' to hold such a licence.

But can they delegate such powers to the licensing department, or must they decide each case on its merits as the successful appeal would seem to suggest?

What has the licensing committee / licensing department done erroneously to have resulted in the suspended Private Hire driver winning his appeal?

I think I know the probable answers to these question, but re-assurance would be calming and relieve anxiety.

Answers in detail please!!
Author:  MR T [ Sun Jul 03, 2011 3:18 pm ]
Post subject: 
The private hire driver appealed to the magistrates' court.... and it decided that the punishment was unjust / excessive.... the licensing department has had a rude awakening. we now live in the time when the punishment must be in proportion to the offence... no matter who makes the decision.. if they had suspended him for two weeks.... the court would probably have agreed.
Author:  Brummie Cabbie [ Sun Jul 03, 2011 4:01 pm ]
Post subject: 
MR T wrote:
The private hire driver appealed to the magistrates' court.... and it decided that the punishment was unjust / excessive.... the licensing department has had a rude awakening. we now live in the time when the punishment must be in proportion to the offence... no matter who makes the decision.. if they had suspended him for two weeks.... the court would probably have agreed.

I don't read it that way.

But let's just say you are correct and a two week suspension would be proportionate.

What chance then, is there for the rule of law in general and eradication of illegal plying for hire would be a non-starter!!
Author:  Sussex [ Sun Jul 03, 2011 5:29 pm ]
Post subject: 
Brummie Cabbie wrote:
A possible change in this policy is on the cards, with first time offenders having their Private Hire driver licence revoked on the first offence.

Well that's no more legal than the existing policy, albeit a bit harsher.

The council must consider each suspension/rekovation on it's own merits. It can't have hard and fast rules.

It can still have harsh policies, but they mustn't do anything just because there is a rule, that they have devised, that says they must do something.

No two circumstances are the same, therefore they shouldn't be judged as if they were.

The main authority for fettering is:

British Oxygen Co Ltd v Minister of Technology: 1970 3 AER 165 HL

British Oxygen, (BOC), used metal cylinders to store pressurised gases, which it manufactured. BOC applied for a grant under the Industrial Development Act 1966 whereby the Board of trade "may make to any person carrying on a business in Great Britain a grant towards approved capital expenditure incurred by that person in providing new machinery or plant." The Board had a policy of denying grants for any item of plant costing less than £25.00 and thus rejected the application, as the cylinders were £20.00 each. BOC sought a declaration that the cylinders were eligible for grant.

HELD: Per Lord Reid: In this context "may" was intended to give the board discretion. If there is a policy or guidance in the Act the board must exercise its discretion accordingly. One generally expects parliament to give some indication as to how public money is to be spent. Parliament clearly laid down conditions for eligibility for grants and has given the Board a discretion but there is nothing regarding circumstances in which they should or should not make grants to such persons. As a general rule such grounds must not be exercised in bad faith and must not be unreasonable, but apart from that, if the Minister thinks that policy or good administration requires the operation of some limiting rule, I find nothing to stop him. The basic rule is anyone who has to exercise a statutory discretion must not "shut his ears" to an application. However, if a number of applications are received it is reasonable to evolve a precise policy to accommodate many of them. This is acceptable provided the authority is prepared to listen to someone with something new to say. It does not necessitate an oral hearing, merely consideration of the application, which occurred here.
Author:  Brummie Cabbie [ Sun Jul 03, 2011 6:25 pm ]
Post subject: 
Thanks for that Mr Sussex; much appreciated.
Author:  MR T [ Sun Jul 03, 2011 7:28 pm ]
Post subject: 
You said the driver had already been to court.... yet that court did not see a need to remove his licence for six months...... they probably fined him and points.... and then the council remove his licence..... the court has no option but to say the council was wrong.
Author:  captain cab [ Sun Jul 03, 2011 8:01 pm ]
Post subject: 
http://www.bailii.org/ew/cases/EWHC/Admin/1999/498.html

http://www.bailii.org/ew/cases/EWHC/Admin/2006/815.html

http://www.bailii.org/uk/cases/UKHL/1970/4.html
Author:  Brummie Cabbie [ Sun Jul 03, 2011 9:50 pm ]
Post subject: 
captain cab wrote:
http://www.bailii.org/ew/cases/EWHC/Admin/1999/498.html

http://www.bailii.org/ew/cases/EWHC/Admin/2006/815.html

http://www.bailii.org/uk/cases/UKHL/1970/4.html

My God!!!

And I thought I had some sh*t on my computer!!

You Captain, have a whole sewerage works!

Thanks a million Captain; very much appreciated.
Author:  Steven Toy [ Sun Jul 10, 2011 1:24 pm ]
Post subject: 
Quote:
But can they delegate such powers to the licensing department, or must they decide each case on its merits as the successful appeal would seem to suggest?


Sussex is right, each case must be determined on its own merits. Any blanket enforcement policy determining suspension or revocation of licenses can be appealed successfully on the grounds of inflexibility alone.

Another local authority, I can't remember which one, had a blanket policy of revoking driving licenses upon the second offence of plying for hire in a private hire vehicle. A driver whose second offence was 29 years after the first with an otherwise unblemished record appealed successfully.

The LA in question were forced to amend their policy in light of this appeal.



The source of my information is Antony Schiller of Dennings, appointed solicitor by the NPHA.
Author:  Steven Toy [ Sun Jul 10, 2011 1:29 pm ]
Post subject: 
Quote:
yet that court did not see a need to remove his licence for six months


The courts are not empowered to suspend or revoke licenses. Only the LA can do that in light of convictions.

A court can, however quash or reduce the duration of a suspension notice already served by a LA on appeal.
Author:  Brummie Cabbie [ Sun Jul 10, 2011 2:11 pm ]
Post subject: 
Steven Toy wrote:
The source of my information is Antony Schiller of Dennings, appointed solicitor by the NPHA.

I know him well; a very good, bordering on excellent, hire and reward solicitor.
Page 1 of 1 All times are UTC [ DST ]
Powered by phpBB® Forum Software © phpBB Group
http://www.phpbb.com/