gusmac wrote:
He came to his own conclusion, without reference to Sneddon.
The Sheriff's own words:
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It however appears to me reading sections
10(2) and (4) and 20(2) that what the legislature intended was that the
Secretary of State should determine generally what types of vehicles could be used as taxis, leaving it to licensing committees to determine whether the particular vehicle proposed by a particular applicant was one of the approved type.
Well spotted Gus. However, it's the same argument as per the WAV provisions - the operative word is surely that the SoS 'may' make provisions rather than 'shall'.
However, it is interesting that the sheriff in the Dundee case basically came to the same conclusion as the Sneddon sheriff on different but similar provision, so to that extent you're correct.
But although I'm clearly not a judge I would put money on a higher court taking a different interpretation.
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I think that's the problem; it was never considered, only assumed.
Do you think it should be accepted without question that councils can do as they please, simply because it is assumed they can?
Of course not, but it seems to me that it was considered legal opinion rather than just a question of councils pleasing themselves. For example, the only legal text book that I'm aware of on the subject (written by QCs) describes the powers under discussion as discretionary. And there's no real evidence that councils, the government etc thought otherwise.
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The Sneddon Sheriff was asked to "stick his oar in". That's his job.
Och, it's just a figure of speech gus, I wouldn't take it too seriously
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I wonder how many doubt it now?
A few, I daresay, but certainly not the solicitor in Dundee
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The fact remains that parliament did not put it in the act but did give this power to the SoSfS.
To repeat what you say below, that is your interpretation, not mine.
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That is your interpretation, not mine. Parliament could have given these powers to councils when framing the legislation or at any time afterwards. They did not.
It is not for the courts to make legislation, only to interpret and apply it. If parliament didn't give this power to councils, it is not for the courts to correct a perceived error or omission in the legislation. Parliament must do that.
Well clearly I can agree with that, but equally clearly it's the interpretation that's in dispute.
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There is no point in speculating what might have happened if parliament didn't do something. Fact is they did.
Well the point I was trying to make was that if it's accepted that before the DDA amendment there was a power to prescribe WAVs then it would seem very strange that this power should be removed between inserting the DDA amendment and the SofS's regulations.
But of course you don't agree that councils had any powers even before the DDA amendment, so I suppose to that extent my question was pointless.
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CGSA Section 10
(2) A licensing authority shall not grant or renew a taxi licence or private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car,
as the case may be, and is safe for that use, and that there is in force in relation to the vehicle such a policy of insurance or such security as complies with Part VI of the Road Traffic Act 1988.
(4) A vehicle shall, for the purpose of subsection (2) above, be treated by a licensing authority:
(a) as being suitable in type, size and design if it complies with regulations in that regard made by the Secretary of State under section 20(2) of this Act in respect of their area; and
(b) as not being so suitable if it does not so comply.
No regulations have been made so IMHO anything complies.
Well the way I see it is that the power in 20(2) is merely discretionary, so to that extent unless the SofS exercises that discretion then 10(4) is irrelevant.
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