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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Osborne
Lord Carloway
Lord Drummond Young
[2009] CSIH 40
XA173/07
OPINION OF THE COURT
delivered by LORD OSBORNE
in appeal from the Sheriffdom of North Strathclyde at Paisley
by
THOMAS SNEDDON
Appellant & Respondent;
against
RENFREWSHIRE COUNCIL
Respondents and Appellants:
______
Act: Ms Wilson, Q.C. , M McKay, Advocate; Allan McDougall, Solicitors
Alt: Sir Crispin Agnew, Q.C.; Simpson & Marwick, Solicitors
26 May 2009
Factual Background to the appeal
[1] The respondent, Thomas Sneddon, has been for some years the holder of a taxi licence issued by the appellants, Renfrewshire Council, under and in terms of sections 2 and 10 of the Civic Government (Scotland) Act 1982, "the 1982 Act". The appellants' licensing area is sub-divided into three district areas, namely Paisley, Johnstone and Erskine. The respondent was licensed to operate within the Erskine District area. That area includes within its boundaries Glasgow International Airport. The respondent operated as a taxi driver exclusively from Glasgow International Airport.
[2] The appellants' functions under the 1982 Act, for some years, have been carried out by their Regulatory Functions Board, "the Board", under their scheme of delegations. That Board comprised elected councillors, who had, inter alia, the responsibility of determining the grant or renewal of taxi licences. On 6 August 1998, the Director of Corporate Services of the appellants reported to their Corporate Services Committee that, in terms of the Disability Discrimination Act 1995, "the 1995 Act", all taxis would require to be wheelchair accessible by 1 January 2012, and that any vehicles licensed for use for the first time as a taxi after 1 January 2002 required also to be wheelchair accessible vehicles, "WAVs". He advised that the appellants might take a policy decision to the effect that all taxis should be wheelchair accessible by a certain date, notwithstanding the specific deadline imposed by the 1995 Act. Based on this advice and as a result of decisions made by the appellants' Licensing Sub-Committee on 6 August 1998 and by the Board on 21 June 2001, the appellants adopted a policy, in relation to applications for the grant or renewal of taxi licences, to the effect that, from 1 January 2002, all vehicles to be licensed as taxis would require to be wheelchair accessible and accordingly an application for a grant or a renewal of a taxi licence had to relate to a vehicle of such a kind. This policy was introduced into the appellants' standard conditions for taxi licences as condition 22. Standard condition 22 is in the following terms:-
"22. The holder of a taxi licence shall use as a taxi only an FX4 Metropolitan type vehicle or any other vehicle of a type which has received the prior approval of the licensing authority. From 1 January 2002, all vehicles to be licensed as taxis shall:-
(i) be coloured white;
(ii) be wheelchair accessible and either custom built taxis such as FX4's or Metro cabs or alternatively MPVs (multi person vehicles) of a type approved by the licensing authority;
(iii) be less than 8 years old from the date of first registration of the vehicle where that vehicle is wheelchair accessible and otherwise be less than 5 years old (the latter age limit to apply only from 1 January 2002 to 31 December 2003 to non-wheelchair accessible taxis which were licensed prior to 1 January 2002); and
(iv) be subject to 6 monthly inspections as from the time they are 5 years old from the date of first registration".
This standard condition reflected the decision of the Board, which had succeeded the Corporate Services Committee, made on 21 June 2001, approving a scheme of implementations for the grant or renewal of taxi licenses after 1 January 2002, creating a transitional period of implementation running between 1 January 2002 to 31 December 2003.
[3] The respondent renewed his existing taxi licence in or about July 2002. Under the terms of the Board's transitional period of implementation, he was not required to have a WAV, and his licence was renewed with an expiry date of 31 July 2004. On 15 June 2004 the respondent, who then operated a four-door saloon car as his taxi, which did not contain a radio car facility, applied for a renewal of his taxi licence, indicating that he wished to replace his existing saloon car taxi with a similar vehicle. By letter dated 30 August 2004, the respondent was advised by the Board that, in accordance with the appellants' policy, reflected in standard condition 22, he would require to change his existing saloon vehicle for a WAV before his licence could be renewed. The respondent's application for renewal was first considered by the Board at a meeting on 30 September 2004, when he was represented by a Mr Munro of the Transport and General Workers' Union. At that meeting, on behalf of the respondent, Mr Munro asked the Board to relax its policy in relation to the respondent. He submitted, inter alia, that the effect of the policy would be to require the respondent to exchange his vehicle for a more expensive WAV; that the respondent could not afford to provide a WAV, which would have a shorter lifespan than a saloon vehicle; that the British Airports Authority preferred to have a mixed fleet of WAVs and nonWAVs at Glasgow International Airport; that the respondent, who was the provider for his family, relied for his income in operating from Glasgow Airport; that the imposition of a policy of one hundred per cent WAVs would not meet the needs of some classes of disabled persons; and that some of the types of WAVs approved by the appellants were little more than Ford Transit Vans with windows.
[4] In response to these submissions, the Board decided to continue consideration of the respondent's application to 16 March 2005, to allow it to meet with senior management at Glasgow Airport. By letter of 7 March 2005, the Board invited the respondent to a meeting on 16 March 2005, to give him the opportunity of making further submissions in support of his application. The Board reminded him of standard condition 22 and informed him that, following the meeting of 30 September 2004, a meeting had been convened with the management of Glasgow Airport on 25 October 2004, but that, to date, the appellants had received no response from them on the matter discussed at that meeting. On 16 March 2005, the Board reconvened to give further consideration to the respondent's application. On 17 March 2005, the Board wrote to the respondent, advising him that, at the meeting on 16 March 2005, it had decided to continue consideration of his application for personal appearance on a date to be assigned. On 31 March 2005, the Board again wrote to the respondent, giving him the opportunity to make further submissions in support of his application at their meeting to be held on 14 April 2005. Once again, the Board reminded the respondent of standard condition 22, and stated that it would have regard to this and to the fact that the vehicle to which he had made reference in his application was outwith Council policy, in that it was not a WAV.
[5] Between 30 September 2004 and 14 April 2005, the respondent's application was considered at a number of Board meetings. During this period, submissions were made to the appellants to the effect:
(a) that the respondent was the sole earner in his family, supporting two children,
(b) that the cheapest approved wheelchair accessible taxi would cost around £18,000.00, well in excess of the cost of a replacement saloon car,
(c) that there were concerns about the safety of the cheaper approved multi-purpose vehicles and that these vehicle had a shorter life span than the Hackney carriages,
(d) that whatever approved vehicle was purchased, additional costs would be incurred,
(e) that the respondent worked solely from Glasgow Airport where there was, on the part of the operators of the Airport, a desire to maintain a mixed fleet of taxis,
(f) that the British Airports Authority were willing to carry out further research as to a market preference,
(g) that there was an identifiable risk, based on experience of the position at Edinburgh Airport, that British Airports Authority might see the restricted range of taxis as a reduction in standards, with the result that the provision of taxis services might be withdrawn from those presently making a living there, and
(h) that the policy of the Board would not address the perceived problem, because the respondent had come to the view that there was insufficient evidence of a shortage of WAVs, which perception had been based on a few complaints against a firm of private taxi operators, which had changed its business operation so as to require persons wishing a WAV taxi to make a reservation one hour in advance.
[6] At the meeting of the Board on 14 April 2005, a Mr Connelly, on behalf of the respondent, submitted that the majority of Renfrewshire taxis licensed to do so, operated from Glasgow Airport; that the users of the Disability Resource Centre were not in favour of a policy requiring all taxis to be WAVs; and that the position of the British Airports Authority was that they preferred customers to have a choice of vehicles and did not wish to see a one hundred per cent WAV fleet. He went on to submit that for the taxi trade to provide a comprehensive service and to meet the needs of everyone, a mixed fleet of taxis was preferable.
[7] On 14 April 2005, the Board wrote to the respondent, telling him that consideration of his application would be continued to allow him to purchase a new vehicle in line with the appellants' policies by 30 June 2005. After 14 April 2005, the respondent lodged an appeal to the sheriff, but that appeal was dismissed as being premature, since no final determination had been reached by the Board.
[8] On 14 June 2005, the Board wrote to the respondent inviting him to attend a meeting on 23 June 2005, giving him the opportunity of making further submissions in support of his application and reminding him that the Board had decided on 14 April to continue his application to allow him to purchase a new vehicle in line with the appellants' policies by 30 June 2005. Mr Connelly, the respondent's representative, decided to attend the meeting of 23 June 2005, as it had not been made clear to him that the sole purpose of the meeting was to discover whether or not the respondent would comply with standard condition 22 on or before 30 June 2005. In view of the letter of 14 June which he had received from the Board, he was under the impression that he could make further submissions in support of the respondent's application and that he could seek to persuade the Board to relax or change its policy in the case of the respondent. Mr Connelly had previously submitted on the respondent's behalf, on more than one occasion, that the British Airports Authority preferred to have a mixed fleet of taxis at Glasgow Airport. In order to reinforce that contention, he obtained a letter from a firm of taxi management consultants, Cab Fly, which was employed by the British Airports Authority as the taxi management agent at Glasgow Airport. As such it was responsible for the taxi operations at the Airport. Mr Connelly attended the meeting with the Board on 23 June 2005, holding a letter from that organisation which confirmed the position that he had previously taken up on behalf of the respondent.
[9] At the meeting, the respondent was asked by the Board to confirm whether or not he would purchase an approved WAV in conformity with the appellants' policies. Mr Connelly, on behalf of the respondent, advised the Board that the respondent did not wish to purchase such a vehicle. Thereafter, the Board allowed Mr Connelly to make the submissions that he wished, but told him to "keep it short". Mr Connelly reiterated his previous submission concerning the unsuitability of the approved WAVs; he submitted that WAVs were more expensive and had a shorter life span that other vehicles; that the taxi trade relied for eighty per cent of its work on Glasgow Airport; that a one hundred per cent WAV policy at the Airport would reduce customer choice; that WAVs were not suitable for all types of disabled persons; that swivel seats in saloon cars could cater for some people with disability problems; that disabled groups were not in favour of a one hundred per cent wheel chair accessible fleet of taxis; that the policy would not address the perceived problem; and that the British Airports Authority at Glasgow preferred a mixed taxi fleet. As part of his submissions, Mr Connelly informed the Board that, since he had last appeared before them, he had obtained a letter from Cab Fly demonstrating the position of the British Airports Authority. He asked the convenor of the Board if he could submit the sealed envelope containing that letter to the Board for its consideration. The convenor of the Board refused Mr Connelly's request and told him that he would have to wait until the end of the meeting and give it to the Board's solicitor.
[10] After Mr Connelly's submissions, a councillor Mullin, a member of the Board asked "what happens to the operators who have complied with the policy"? Councillor Kelly, another member of the Board, said that he wished "to stick to the one hundred per cent WAV policy". Counsellor McGerty, yet another member of the Board, said that while he hoped to be flexible and review the whole policy, because a fare-assisted scheme had fallen through, the appellants were left with no option but to impose a one hundred per cent WAV scheme. During the course of the discussion, reference was made to the power conferred by section 10 of the 1982 Act on the appellants to determine what type of vehicle was suitable for use as a taxi. Thereafter the Board announced its unanimous decision to refuse the respondent's application for renewal of his taxi licence, on the basis that there was no compelling reason to depart from the appellants' policy. After the announcement of the Board's decision, the convenor of the Board told Mr Connelly that he could now hand over the Cab Fly letter to the Board's solicitor, which he did. Thus the Board did not read or consider that letter prior to its reaching and announcing its decision to refuse the respondent's application for renewal of his taxi licence. The Board never identified nor did it inform the respondent of any criteria in terms of which an exception might be made to the appellants' policy, enshrined in standard condition 22. By a letter dated 19 May 2006, the appellants issued a statement of reasons for their refusal of the respondent's application.
[11] The statement of reasons just referred to sets out the procedure followed by the Board, which we have already described. In particular, it narrates the submissions made to the Board at the meeting of 30 September 2004 by Mr Munro of the Transport and General Workers' Union. It goes on to record that, after the hearing of those submissions, the Board decided to continue consideration of the application in order that they could meet with senior management at Glasgow Airport. It then narrates what transpired at that meeting held on 25 October 2004, in these terms:-
"Present on behalf of the Council were Councillor McDowell (Convenor of the Board), Councillor McGerty (Vice-Convenor) and Councillor Hood (Vice-Convenor) and Marcus Parham, Assisting Managing Solicitor. Present on behalf of the Airport were Stewart Wingate, Derek Hendry and Ronald Leith. Representing Mr Sneddon were Donald Munro and Drew Connolly and representing the taxi trade generally was Billy Motram. At that meeting a proposal was tabled by Billy Motram whereby wheelchair accessible taxis at the Airport could be utilised for wheelchair accessible hires within Renfrewshire. The proposal would require an element of the Airport permit fee (paid by taxi operators) being used to subsidise those hires. The representatives of the Airport said they would require to look at the figures before commenting on the proposal and Donald Munro advised that he would require to seek his members' views.
Mr Parham explained to the Airport representatives that the Airport acted as a magnet for taxis and most WAV vehicles (sic) operated either exclusively or predominantly from there. This left very little in way of WAVs to service wheelchair users from within Renfrewshire and this led to many complaints regarding poor service provision. Also at the meeting Councillor McDowall explained that from previous meetings with the Airport management it had been clear that they had no problem with regard to the Council's policy requiring all taxis to be wheelchair accessible. However, Stewart Wingate explained that it was now the Airport's preference for airport customers to have a choice of vehicle and that the Airport would not be happy with a 100% wheelchair accessible fleet.
The meeting was adjourned for the Airport to examine Mr Motram's proposal and for Mr Munro to check with union members. Glasgow Airport were ultimately not in favour of Billy Motram's proposal. Donald Munro's members were in favour".
The statement of reasons goes on to record the Board's subsequent procedure, already described. In particular, it contains a narrative of submissions made at the meeting on 16 March 2005. The statement then continues:
"Following those submissions, the Board decided to continue consideration of the application further in order to consider further its policy with regard to wheelchair accessible taxis.
The Board reconvened to consider Mr Sneddon's application on 14 April 2005. At that meeting Mr Sneddon was not present, but was represented by Mr Connolly. Also present at the meeting was Billy Motram. Further submissions were made by Mr Connolly and Mr Motram. Most of the submissions covered old ground and reference was again made to the fact that Glasgow Airport did not want to see a 100% wheelchair accessible fleet. Billy Motram submitted to the Board that less and less people were going on to the radio systems and this was causing a problem in finding WAV vehicles (sic) for wheelchair users. After hearing all the submissions, the Board decided that it would not make an exception to its policy and continued consideration of the application until 30 June 2005 in order for Mr Sneddon to comply with the Council's policy and obtain and have licensed a fully wheelchair accessible vehicle.
Prior to 30 June 2005, Mr Sneddon made it known to the Council that he was not prepared to comply with the decision of the Board on the 14 April. A further meeting of the Board was convened on 23 July 2005. At that meeting, Mr Sneddon was present along with Mr Connolly. Mr Connolly advised the Board that Mr Sneddon did not intend to purchase and licence a wheelchair accessible vehicle. Despite having previously decided not to allow an exception to its policy in this case, the Board allowed Mr Connolly to address them further".
There then follows a narrative of the submissions made on 23 June 2005, already referred to. The Board's statement of reasons then continues:
"After considering carefully, all the information that had been presented to it, the Board unanimously decided to refuse Mr Sneddon's application.
The Board had some sympathy with Mr Sneddon's position and considered very carefully all the arguments presented by him and particularly the potential for increased financial costs should the policy be applied. However his arguments required to be looked at in light of the overall aims of the policy. When doing that the Board considered that none of Mr Sneddon's arguments either individually or collectively were compelling or persuasive. The policy was intended to solve the problem of an inadequate provision of taxis for wheelchair users. Nothing submitted by Mr Sneddon was particularly unique and indeed the arguments put forward by him could be utilised by many other taxi operators. The Board considered that if they were to accede to Mr Sneddon's request, then there would be nothing to stop many operators submitting similar requests all of which would be difficult to resist. The ultimate effect would be that the policy would become redundant and the service to some of the most vulnerable members of the community would not get any better, but if anything would get worse. The Board therefore considered that the positive benefits of applying the policy outweighed the negative factors argued by Mr Sneddon.
The Board acknowledged the position of Glasgow Airport but the Board required to be conscious of its obligations to the wider community in Renfrewshire. The preference of the Airport for a mixed taxi fleet required to be balanced against the needs of wheelchair users and it was clear to the Board that the preference of wheelchair users for greater accessibility to taxis and therefore more WAVs was far more important. With regard to swivel seats, the Board were of the view that they would not be a satisfactory alternative to a wheelchair accessible vehicle.
In the circumstances, the Board decided it had to refuse Mr Sneddon's application given that he was not prepared to have licensed a wheelchair accessible vehicle and the application was therefore refused in terms of section 10(2) and paragraph 5(3)(c) of the first schedule to the Civic Government (Scotland) Act 1982".
[12] Following upon the Board's refusal of the respondent's application, he appealed to the sheriff against that decision in terms of section 18 of the 1982 Act. His appeal was heard before the sheriff at Paisley on several dates between 24 April 2006 and 2 February 2007. On 2 October 2007, the sheriff sustained the respondent's appeal in part. Having made findings in fact, which we have endeavoured to summarise, he held that the appellants, through the Board, having allowed the respondent's representative to make further submissions at the meeting of 23 June 2005, did not give proper consideration to his submissions. The Board did not allow the respondent's representative to submit the Cab Fly letter in the course of his submissions. The Board did not know the terms of the Cab Fly letter. It arrived at its decision without considering the contents and substance of that letter. The Board determined the respondent's application without giving proper consideration to his full submissions. Accordingly, in reaching that decision of 23 June 2005, the sheriff held that the appellants had acted contrary to natural justice. In that situation, the sheriff sustained in part the respondent's plea in law by finding that the appellants had acted contrary to natural justice. He then remitted the respondent's application back to the appellants to hear the matter de novo before a Board constituted by members different from those who conducted the hearing on 23 June 2005. The appellants have now appealed on a point of law from the sheriff's decision to this court, in terms of section 18(12) of the 1982 Act. In pursuance of their appeal, the appellants have lodged grounds of appeal which deal with two matters: the sheriff's decision that they had acted contrary to natural justice and the lawfulness of the policy that all taxis should be WAVs.
[13] It should be explained that, while the sheriff did not make a decision on the latter matter, in that he did not sustain that part of the respondent's plea-in-law to the effect that the appellants had erred in law by adopting an unlawful policy, which was argued extensively before him, he did in fact express a view upon that matter. His view is recorded between pages 169 and 173 of the appeal print. That view was that the respondent's primary submission was correct and that the policy and licensing conditions of the appellants which implemented that policy, were ultra vires and went beyond the powers entrusted to them by Parliament.
The scope of the appeal before this court
[14] When this appeal came before us, senior counsel for the appellants indicated that the appellants did not wish to insist in their first ground of appeal, to the effect that the sheriff had erred in holding that the Board had acted contrary to natural justice. It was a consequence of that concession that the case would require, in due course, to be remitted back to the appellants to hear the matter de novo, as ordered by the sheriff. In the light of that concession, the court was concerned as to whether the appeal possessed any live content. There followed a debate on that matter. Senior counsel for the appellants observed that the sheriff had in fact dealt with the issue of the lawfulness of the appellants' policy relating to taxi licensing, which had been argued before him, but had confined himself to expressing a view without making any consequent order. He took that course, it appeared from page 169 of the appeal print, because he considered that it was not necessary for his decision to do otherwise. The appellants took issue with that course of action. The position had been that the lawfulness of the appellants' policy had been put in issue before the sheriff; he had expressed a view about it; and he could and should have made an executive order in relation to it. He could have done that by sustaining the plea in law for the respondent to a greater extent than he had done; in particular, he could have sustained that part of that plea in law that stated that the appellants had erred in law, in respect that they had formulated and applied an unlawful policy. If that had been done, the issue of the lawfulness of the policy would have properly been put before this court. As it was, that had not been done. It was contended that the sheriff had erred in law in not making his order extend to the matter of the lawfulness of the policy which had been in issue before him. If that view were taken, this court could entertain argument concerning the lawfulness of the policy, which would be highly expedient, in respect that there were thirty three appeals pending before the sheriff in Paisley, in which the appellants' policy was challenged. Those appeals had been sisted pending the outcome of the present case. In connection with this submission, senior counsel referred to Ross & Cromarty Council v Patience 1997 S.C.(H.L.) 46, at pages 47 and 48. Senior counsel said that there had plainly been in issue before the sheriff the questions of the lawfulness and reasonableness of the policy.
[15] Senior counsel for the respondent expressed concurrence with the position just described. The respondent would be prejudiced if the matter were remitted to the licensing authority on the basis ordered by the sheriff alone. That authority would not be bound by the sheriff's expression of opinion regarding the lawfulness of the policy. It had been the expectation of the parties that the sheriff would determine the lawfulness of the policy. He had erred in not doing so.
[16] In the ensuing discussion, an issue arose concerning plea-in-law 5 for the appellants, which appeared to challenge the right of the respondent to raise the issue of the lawfulness of the policy before the sheriff, since it had not been challenged before the Board. However, senior counsel for the appellants said that he did not insist on that plea-in-law, which could be repelled.
[17] Against the foregoing background, we decided to entertain submissions in connection with the lawfulness of the appellants' policy, upon the basis that it was a matter which had been put in issue before the sheriff, who ought to have made an executive decision in relation to it.
Submissions on behalf of the appellants
[18] Senior counsel for the appellants drew attention to the written outline submissions prepared on their behalf. He submitted that the sheriff had erred in relation to the significance of the terms of section 20 of the 1982 Act. In particular his reliance upon the dissenting judgment of temporary judge, Sir David Edward, Q.C. in Davies v Renfrewshire Council 2005 S.C. 315 was misconceived.
[19] He had concluded that section 20(2A) had the effect of preventing the appellants from formulating a policy regarding taxis suitable for disabled persons. However, since the Secretary of State, so far, had chosen not to make regulations under section 20, the proper conclusion was that it was open to the appellants to develop their own policy in relation to that matter. Standard condition 22, which reflected the appellants' policy, had been designed to introduce the requirement for WAVs over a period of time. The policy had been adopted against a background of problems in Renfrewshire, particularly at Glasgow Airport, which was seen as a "honey pot" for taxi drivers. Because 180 out of 215 holders of licences for taxis had permits to operate at the Airport, there had developed a shortage of WAVs elsewhere, precipitating complaints from wheelchair users. That was part of the justification seen by the appellants for the introduction of their policy. It was of interest to note that a substantial number of licensing authorities now insisted upon the provision of WAVs before granting a licence.
[20] Senior counsel then proceeded to draw attention to what he contended was the statutory basis for the policy, which was to be found in section 10(2) of the 1982 Act. The licensing authority were empowered not to grant or renew a taxi licence unless they were satisfied that the vehicle to which the licence was to relate was "suitable in type, size and design for use as a taxi ...". In satisfying themselves about those matters, they were entitled to have regard to the needs of the disabled. Section 10(4) was the basis on which the discretion of the licensing authority might be taken away from them, in the event that the Secretary of State made regulations relating to such matters; but, it was agreed, he had not done so. Looking at the terms of section 20 of the 1982 Act, sub-section (1) provided a general power relating to the imposition of conditions. Sub-sections (2) and (2A) conferred power upon the Secretary of State to make regulations concerning the types, sizes and designs of vehicles to be used as taxis. In particular, such regulations could extend to prescribing matters necessary for "the carrying in taxis of disabled persons". These provisions showed that the law contemplated the appropriateness of consideration of the needs of the disabled. The reference in section 20(2A) to what was "necessary or expedient" suggested that the licensing authority itself had a discretion in relation to these matters; the Secretary of State might make regulations only if that discretion was not exercised in an appropriate manner. While there were many disabled persons who did not require to use wheelchairs, on the other hand many disabled persons did. WAVs were suitable for use by both types of disabled person.
[21] Continuing with a consideration of the statutory basis for the imposition by the appellants of conditions on the grant of taxi licences, senior counsel drew attention to paragraph 5 of schedule 1 to the 1982 Act, which provided that a grant might be subject to conditions. Under paragraph 5(2), such conditions required to be "such reasonable conditions ... as the licensing authority think fit". Paragraph 5(3)(c) empowered the licensing authority to refuse to grant or renew a licence if it related to a vehicle which was "not suitable or convenient for the conduct of the activity" concerned, having regard to "the kind of persons likely to be in the...vehicle...". Under paragraph 5(3)(d), they also had power to refuse an application for any "other good reason". These particular provisions enabled the licensing authority to refuse an application for grant or renewal on the basis of a failure of the vehicle concerned to meet the needs of the disabled. Senior counsel went on to draw attention to the provisions of section 32 of the 1995 Act.
[22] He next turned to draw our attention to several authorities which he contended were relevant to the issues before us. The first of these was the well known case of Pyx Granite Company Limited v Ministry of Housing & Local Government [1958] Q.B.554, particularly the observations of Lord Denning at page 572. Conditions had to be properly related to the matter in hand and not be designed to achieve some ulterior object. The issue of conditions had been considered in Stewart v Perth & Kinross Council 2004 S.C.(H.L.71). The observations of Lord Hope of Craighead at page 78 in paragraph 25 and 28 were helpful. The scope which had to be given to the expression "such reasonable conditions" had to be ascertained from the context. In relation to the conditions involved in this case and to the point made that the provision of WAVs was more expensive than the provision of ordinary vehicles, it was pertinent to note that the licensing authority itself had the responsibility of setting taxi fares. Such fares could be set at a level which would reflect the additional costs involved in the provision of WAVs. Senior counsel went on to draw attention to William Hill (Caledonian) Limited v City of Glasgow Licensing Board 2003 S.C. 289, a case concerned with a betting office in premises which were inaccessible to non-ambulant disabled people. At paragraph 17, the court considered that it was appropriate for the licensing authority to have regard to, among other things, the accessibility of the premises in relation to persons likely to use them. Senior counsel next went on to rely on Davies v Renfrewshire Council 2005 S.C.315 which related to disabled access taxis. At paragraph 11, Lord Marnoch had opined that the needs of the disabled were highly significant in this context. Wilson v Aberdeen City Council 2008 S.C.231 was also of assistance. Again the case concerned taxi licensing. Again the court was sympathetic to a policy which envisaged that the whole taxi fleet in a local authority area would become wheelchair accessible. Reliance was also placed on Regina v Manchester City Justices, ex parte McHugh [1989] I.R.T.R.285. Once more the court was sympathetic to the needs of the disabled in relation to the condition-making power of a Licensing authority. The case had involved the challenge to the vires of the Licensing authority in relation to a policy which they had developed prior to the enactment of the 1995 Act. Reference was made particularly to the observations of Simon Brown J, as he then was, at page 296. The view had been taken that it was intra vires to have a WAV policy even at that stage.
[23] Senior counsel informed us that there had been some level of encouragement by the Scottish Ministers to the development of policies by taxi licensing authorities making provision for the disabled. This matter was referred to at pages 60 to 61, 110, 112 and 113 of the appeal print.
[24] Against this background, the sheriff had erred in forming the view which he did between pages 169 and 172 of the appeal print. In all the circumstances, senior counsel moved us to repel the respondent's plea-in-law where it referred to the appellants having erred in law. As regards the appellants' pleas-in-law, there was no need to deal with plea 2; plea 4 should be sustained and plea 5 repelled. As regards plea 2 the sheriff had decided that the Board had acted contrary to natural justice and that finding was not challenged. It was a matter of agreement that the interlocutor dealing with expenses, dated 7 November 2004, should not be disturbed.
Submissions of counsel for the respondent
[25] Counsel for the respondent drew attention to the written outline submissions for the respondent. He sought that the respondent's plea-in-law should be sustained to the extent that it referred to an error of law on the part of the appellants. In short, he contended that the policy adopted by the appellants was unlawful. It should be made clear that the underlying problem that the licensing authority had sought to address was not the availability of WAVs at Glasgow Airport; it was the lack of such vehicles elsewhere, as appeared from findings-in-fact 10 to 12 on page 41 of the appeal print. However, it ought to be noted that the level of complaints regarding the situation was very low. At the heart of the issue of vires was the question of statutory interpretation. The reasonableness of the policy adopted had been put in issue before the sheriff, as appeared from the averments made in paragraph 3 of the respondent's summary application to the sheriff, to be found at page 18 of the appeal print. However, the sheriff had not dealt with that issue, as appeared from his observations at page 173 of that document. The principal problem that existed in relation to the policy in question was that it appeared to leave no room for the exercise of discretion on the part of the licensing authority.
[26] Counsel went on to draw our attention to the way in which the appellants' policy had been developed. There had been put before the Corporate Services Committee a report by the Director of Corporate Services dated 9 July 1998, which made certain recommendations. These had been adopted by the Corporate Services Committee on 6 August 1998. Reference was made to these matters at pages 99 to 101 of the appeal print. The policy had been reconsidered in 2001. He contended that no document had been placed before the sheriff to show how the policy was to be applied.
[27] Counsel for the respondent made clear that he did not intend to argue that, in the light of the factual position so far, as it had been found, the licensing authority had reached an unreasonable decision. He intended to confine his argument to the issue of the lawfulness of the policy as a matter of vires. There were two aspects to that matter:
(1) the construction of the legislation; and
(2) the reasonableness of the policy as implemented in standard condition 22.
That condition itself, on its terms, allowed no room for a departure from it in exceptional circumstances. Whether that condition could be lawfully imposed depended on whether the licensing authority was able to show that the terms of paragraph 5(2) of schedule 1 to the 1982 Act had been obtempered. The discretion which the licensing authority possessed was qualified there; conditions imposed had to be "reasonable". The submission made to the sheriff was that the matter of suitability of vehicles was potentially subject to regulation by the Minister. In the absence of such regulation, the licensing authority had a duty to consider the issue of suitability and was entitled to have a policy in that regard. Counsel accepted that the licensing authority was not paralysed by a lack of regulations made by the Minister. Accordingly, the sheriff had been wrong in the basis of the opinion which he had expressed at page 173 of the appeal print. Essentially, the submission of the respondent was set out in paragraph 4.2 of the outline submissions. The appellants' policy was inconsistent with and destructive of the purposes of the statutory provisions under which the discretionary power was operated. Parliament had not intended that the licensing authority should regulate the licenced activity in the manner exemplified by standard condition 22. That policy was so rigidly formulated that the licensing authority had disabled itself from exercising the discretion entrusted to it. It was accepted that the sheriff had not made a decision in relation to the reasonableness of the appellants' decision. In any event, their decision was flawed by virtue of their failure to observe the requirements of natural justice.
[28] Counsel next proceeded to examine in detail the relevant provisions of the 1982 Act. It could be inferred from the provisions of section 20(2A)(b) and (c) that Parliament's intention had been that there should be retained some level of flexibility in relation to the regulations which might be prescribed by the Secretary of State. If that were the case, the same considerations should be applicable to any policy adopted by a licensing authority. In relation to the interpretation of the legislation, it was of interest to note the terms of the Scottish Development Department Circular No. 25/1986, dated 7 August 1986, concerned with the Licensing of Taxis & Private Hire Cars, particularly annex A thereto, paragraphs 2.19 to 2.21 and 2.47. Reference was also made to the Hansard Report of the Debate in the House of Lords on the Civic Government (Scotland) Bill on 19 October 1982 and to the provisions of section 32 of the 1995 Act. The point that could be made in relation to the scheme of the legislation was that, having regard to the definition of "disabled persons" in section 1(2) of the 1995 Act, it did not support an approach which equated the carriage in taxis of wheelchairs with accessibility for disabled persons generally. There were many types of disabled persons. However, it was accepted that persons who used wheelchairs and wished to travel might require special consideration. Reference was also made to the terms of the Report of the Debate in the House of Lords on the Disability Discrimination Bill in Hansard, dated 15 June 1995. It was evident that Part V of the 1995 Act had been framed with the interests of all disabled persons in mind. It was submitted that the mandatory policy that appeared to further the interests of a particular sub-set of disabled persons, to the prejudice of others, was inconsistent with or destructive of the purposes of the legislation. The licensing authority was entitled to have a policy in relation to the carriage of wheelchair users in taxis, but what it could not lawfully do was to impose a condition on a mandatory basis which protected the interests of wheelchair users, to the prejudice of other disabled persons generally. What was accessible to a wheelchair user might not necessarily be accessible to persons with other disabilities. On this basis, standard condition 22 was, it was submitted, inconsistent with the objects of the legislation. In this connection reference was made to column 453 of the Hansard Report of the Debate on the Disability Discrimination Bill, dated 20 July 1995. Plainly the legislators considered that uniformity was not desired. It was not the intention of Parliament that prescriptive and onerous requirements for WAVs should be imposed on the taxi industry as a whole. The intention was that the needs of all disabled persons should be taken into account.
[29] Counsel turned next to consider, in relation to authority, the matter of appropriate conditions. He relied on Barclay v Renfrewshire Council 2002 S.L.T. 647, at page 651. It emphasised the need for conditions to be reasonable. In connection with standard condition 22, it was of interest to note that the statement of reasons issued by the appellants following upon their refusal of the respondent's application demonstrated that they considered that they were compelled to adhere to the one hundred per cent WAV policy. The problem for the appellants was their rigid application of this policy. In that connection, support could be got from Holt v Watson 1983 S.L.T. 588. In that case the court had held that the imposition of rigid criteria for a holder of a taxi cab operator's licence was unreasonable. The need for a flexible approach to policy was emphasised in Elder v Ross & Cromarty District Licensing Board 1990 S.L.T. 307 at page 311. In this connection, reference was also made to Bass Inns v The City of Glasgow District Licensing Board 1996 S.L.T. 242. Reliance was also placed on Stewart v Perth & Kinross Council and Ingram v City of Aberdeen Council 1996 S.C. 1.
[30] Summarizing his position, counsel contended that the policy under consideration conflicted with the scheme of the legislation, particularly in relation to section 10(2) of the 1982 Act, which required the licensing authority to consider suitability in the case of each vehicle under consideration, unless regulations had been made by the Secretary of State, in which event those regulations would prescribe what was suitable. In considering what was suitable and what were reasonable conditions, the licensing authority ought to have had regard to the criteria specified in paragraph 5(3)(c) of schedule 1 to the 1982 Act. The policy in standard condition 22 was of such a nature as to be counter-productive to the interests of non-ambulant disabled persons, who did not use a wheelchair, or who preferred to travel in a saloon car. That could not have been the intention of Parliament. The kind of policy which might be reasonable might be one which had the effect of encouraging investment in WAVs. Whether some condition requiring the provision of a WAV ought to be attached to the grant or renewal of a particular licence would require to depend on whether that was reasonable in the circumstances, taking account of a number of factors, including the extent of the provision of WAVs in the area in question; in particular, in the area in which the applicant was likely to be operating; the needs, including special needs, of passengers likely to be carried; and the existence or absence of complaints from wheelchair users as to the provision of WAVs in the location in question. Such an approach would reflect the statutory responsibilities that rested on a licensing authority under section 10(2) of the 1982 Act. However, the adoption of a rigid approach such as that adopted here had the effect of undermining the discretion imposed upon the licensing authority under section 10(2) of the 1982 Act.
[31] Counsel finally went on to examine Wilson v Aberdeen City Council and Regina v Manchester City Justices, ex parte McHugh. This latter case could be distinguished.
Reply by senior counsel for the appellants
[32] Senior counsel began by making certain general points. In the first place the fact that a licensing authority had several options did not mean that the selection of one was unlawful because there were others. Secondly, there was a difference between a policy which said that there were to be no exceptions and one where the licensing authority did allow the consideration of exceptions, as had happened here. Looking at the procedure which had been followed by the Board in this case, it had bent over backwards to afford the respondent the opportunity to say why he should be an exception to the policy; thus, it was accepted that the policy was strict, but every opportunity had been afforded to the respondent to say why he should be an exception to it. In this connection, it was important to recognise what had been said in In re Findlay [1985] 1A.C. 318, particularly at page 335. Thus if a licensing authority thought fit, a policy which required that all taxis should be WAVs, if that aim were legitimate, and even if the authority would refuse applications to be an exception unless there were very compelling reasons to depart from the policy, would be lawful. A policy requiring one hundred per cent of WAVs was not in itself unlawful, if the authority would genuinely consider an application to be an exception; that undoubtedly had happened here. In any event, it ought to be recognised that a WAV normally possessed features that were appropriate for persons who were disabled in other ways than wheelchair users. If a disabled person particularly wished to utilise a saloon car, the option was available to that person to engage a private hire car. In the Parliamentary Debates, taxis and private hire cars were considered in the same context.
[33] There were certain practical problems in connection with the discussion of the reasonableness of the appellants' policy, in respect that there were no findings-in-fact by the sheriff which related to that matter. Furthermore, he himself had reached no conclusion on it. Accordingly this court could only consider reasonableness as a matter of law. In one sense lawfulness and reasonableness were related.
[34] There had been some criticism of the formulation of standard condition 22. On its terms, it did not appear to admit of exceptions. However, it was submitted that it was legitimate to have such a policy, if the licensing authority gave an applicant the opportunity to say why he should be an exception to the policy. In that connection the observations of Lord Scarman in In re Findlay were pertinent. In this connection Ahmed v North Lanarkshire Council 1999 S.L.T.1064 was also of assistance. There the council had adopted a policy regarding the opening hours of catering establishments which specified strict time limits. At page 1067 the court declared that a rigid policy was legitimate provided that the licensing authority were prepared to listen to representations as to why it should not apply to a particular applicant. Furthermore, where a policy of a strict nature had been adopted, it was a relevant justification for a refusal to allow a departure from it that to allow an exception could result in the undermining of the policy itself. In this connection reference was made to Mapah v Secretary of State for the Home Department [2003] E.W.H.C. 306 Admin. Likewise, in The Queen v The Secretary of State for Trade & Industry ex parte the Isle of Wight Council CO/4077/99, the court had held that, in exercising a discretion as to whether or not to make a special case, a decision-maker was entitled to have regard to the precedent that the making of that special case might establish. Thus the possible creation of a precedent was a legitimate reason for not making an exception. Accordingly it was lawful for a licensing authority to express as a reason for refusal to depart from a policy the fact that to do so would set a precedent. In the appellants' statement of reasons, at page 30 of the appendix, that is what had been done. It was legitimate.
[35] The appellants had introduced their policy, reflected in standard condition 22, in 1998, only after extensive consultation with disabled groups and the taxi trade. Their approach to the problems to which they faced had been reasonable.
Submissions by senior counsel for the respondent
[36] Senior counsel adopted her junior's motion and submissions. She intended to focus upon the strict lawfulness of the policy in question, rather than the reasonableness of that policy, or the making of the decision to refuse the respondent's application. The issue before the sheriff had been principally the lawfulness of the decision of the licensing authority to impose standard condition 22 and insist upon compliance with it. There were three aspects to the matter, firstly the strict lawfulness of the policy, which involved consideration of whether the formulation of such a policy was intra vires. Secondly there was also an issue regarding the reasonableness of the policy, having regard to the statutory functions of the licensing authority. Unfortunately there were no findings-in-fact relating to much of the material that was relevant to that matter. The third area was the reasonableness of the decision of the licensing authority in the circumstances of this case; in other words the manner of the application of the policy to the respondent. That had not been addressed by the sheriff. The issue of lawfulness was closely related to the terms of paragraph 5(2) of Schedule 1 to the 1982 Act. In this connection, senior counsel referred to Stewart v Perth & Kinross Council, paragraph 28. The question was whether there was a justification for curtailing the choice of the individual operator. The passages extracted from Hansard, already referred to, demonstrated the need for a flexible approach. It had plainly not been the intention of Parliament that a policy should be adopted that favoured one type of disabled user, to the prejudice of others. One of the problems of the case was that it was difficult to identify a document in which the policy was declared. All that was available was standard condition 22, although it had been clear that there had been a decision to follow the recommendation made to the relevant committee to adopt the policy. The court did not have the terms of that decision. Thus it could not be seen whether the policy, as adopted, appeared to admit of exceptions.
[37] The court should follow the principles set forth in Elder v Ross & Cromarty District Licensing Board, already referred to. It was significant that senior counsel for the appellants had made no reference to this case. The question was whether or not the terms of the policy were destructive of the purposes of the statutory provisions under which the licensing authority's discretion was exercised. Under reference to Wilson v Aberdeen City Council, the licensing authority should have had regard to the interests of operators of taxis, as well as other considerations.
[38] It was submitted that the court had to assess the appellants' policy on the basis that standard condition 22 was the policy; no other approach was available. On the face of the terms of that condition, there could be no exceptions to the policy; yet, if it were to be lawful, there had to be at least the possibility of exceptions to it, so that the discretion conferred by section 10(2) of the 1982 Act might be preserved. The licensing authority here should have considered the circumstances in which an exception might be permitted, yet there was no indication that that had ever been done. It was clear that the intention of the appellants was to ensure that the taxi fleet in the area of their jurisdiction was one hundred per cent WAV. Reliance had been placed by senior counsel for the appellants on the procedural actings that had occurred in this case; there had been several continuations of consideration by the appellants, which had been relied upon to show that the appellants were considering the possibility of an exception to the policy. However, the fact was that, in the end, none of that had made any difference. As appeared from finding-in-fact 54, the Board had found that there was "no compelling reason to depart from the policy". Finding-in-fact 25 was significant; at an early stage of the matter, the Board had written to the respondent saying that he would "require to change his existing saloon vehicle for a wheelchair accessible vehicle...before his licence could be renewed". That hardly demonstrated a flexible approach. One found no indication that the licensing authority in this case had considered the suitability of the respondent's vehicle, so far as certain users in certain sections of the community were concerned, particularly those who engaged taxis at Glasgow Airport where the respondent operated. What had been necessary was that there should have been an unfettered discretion. The terms of finding-in-fact 50 tended to suggest that that was not so. In all the circumstances, the appellants had acted unlawfully in adopting and applying the policy, which had the effect of their obviating consideration of the position of the respondent. As regards Ahmed v North Lanarkshire Council, senior counsel adopted what was said at page 160 of the appeal print.
The decision.................
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