Taxi! Breach of consultation and apparent bias
Taxis take you wherever you want to go, but Newport City Council’s taxi ride to the Administrative Court didn’t end well for the authority.
The court quashed the council’s decision to introduce age limits for licensed hackney carriages and private hire vehicles. Presumably the only tip at the end of the journey was one for the council – make sure that when you consult you take representations conscientiously into account. Also, ensure you avoid any appearance of bias. This was clear from the judgment of Mr Justice Beatson on 27 November 2009 in R (Lionel Morris) v Newport City Council [2009] EWHC 3051 (Admin).
Background
The council’s decision to introduce age limits on vehicles licensed as hackney carriages and private hire vehicles in Newport on a phased basis from 1 October 2009 was taken by councillor David Fouweather, the cabinet member for environmental and community safety, to whom the council’s cabinet had delegated the prescription of general taxi licensing policy. However, in taking the decision, councillor Fouweather had failed to disclose that his brother Wayne was a licensed hackney carriage driver and that his half-brother was a licensed private hire driver in Newport. Furthermore, Wayne Fouweather was present at one of the meetings between council officials and trade representatives which discussed vehicle age limits. It appeared that while councillor Fouweather’s brother was positively supporting age limits, others in the trade objected to them.
As indicated, the matter subsequently fell for decision by councillor Fouweather and the outcome was challenged by judicial review proceedings launched by Lionel Morris, a hackney carriage driver and chairman of the Newport Hackney Drivers Association (the association). He submitted that the above non-disclosure by councillor Fouweather had been a breach of the council’s code of conduct for members and the common law rule concerning bias. Among his other contentions was that the council had breached the public law requirements surrounding consultation.
The court’s decision
Consultation: Beatson J noted the settled law on consultation, namely that: (a) consultation must be at a time when proposals are still at a formative stage; (b) sufficient reasons must be given for any proposal to enable intelligent consideration and response; (c) adequate time must be given for such consideration and response; and (d) the product of consultation must be conscientiously taken into account in finalising any proposals. These were referred to in the proceedings as the ‘Sedley requirements’ because they were originally formulated in 1985 by Stephen Sedley QC, as he then was, in submissions in Ex parte Gunning [1985] 84 LGR 168. They were notably referred to by Lord Woolf in the leading case of Coughlan (R v North East Devon Health Authority, ex parte Coughlan [2001] QB 213).
As to (d) (taking the product of consultation conscientiously into account in finalising proposals), Newport’s relevant decision reports did not include relevant representations by the association, including those at a meeting held between the council and the association. The association had then commented (among other things) that:
it was opposed to an age limit on vehicles due to the ‘credit crunch’;
vehicles were tested twice a year and could also be called in for random tests;
even where a vehicle was over 10 years old, the owner could have maintained it to an exceptional standard, whereas some younger vehicles were not maintained to an acceptable standard and may not be in such good condition; and
more stringent testing should be undertaken and vehicles not meeting the standard should be taken off the road.
In the court’s view the failure to include these and other relevant representations on behalf of the drivers was ‘a material and important deficiency in the consultation process’. In the view of Beatson J, it also suggested that a relevant factor was not taken into account in the council’s decision. In the light of this (and also doubts about whether the proposals were truly only at a formative stage when the consultation was conducted) the court concluded that the council’s decision was flawed.
Apparent bias: councillor Fouweather indicated that he had not made the relevant disclosure of interest in connection with the decision he took since (according to the court) ‘... he had informed officers within the licensing section that his brother was a licensed hackney carriage driver and his half-brother a licensed private hire driver, of the nature of his relationship with them and... the officers were satisfied that the family connection would not preclude him from taking the decision’.
Also he ‘... considered that because he had so little contact with his brothers, in particular his half-brother, their family connection was not a sufficiently close association to require him to declare a personal interest’.
In the light of the particular provisions of the code of conduct in Wales, the court (perhaps surprisingly) found no breach of the code. Beatson J noted that the code ‘... does not deem family members to have a close personal association with a councillor’. And the ‘... express reference to family members in the 2001 Model Code of Conduct... was removed from the 2008 Model Code’. However, Beatson J did say that, in borderline cases, prudence suggests that ‘... disclosure should be made so that the matter can be considered in advance of or at the time the decision is made’. So, while Mr Morris and association members ‘... may have known of councillor Fouweather’s family connections and not objected to him taking decisions about hackney carriage and private hire licensing policy, it would have been prudent for councillor Fouweather to disclose that relationship at the meetings even if, on examination, the association was not a close one’.
However, as to apparent bias, while the participation by Wayne Fouweather in the discussions with the council did not ‘... necessarily change the nature of their relationship for the purpose of the code of conduct’, the court considered that ‘... it may well change the perception a fair-minded and informed observer would have’.
And if ‘councillor Fouweather did not disclose the relationship because of the advice he received from the officers he consulted, he was not served well by them’. For it ‘... would have been prudent for him to disclose the relationship before making any decisions on the matter’.
Comment
Whatever the particular provisions of the code of conduct, the court’s comments on prudence must be correct as a matter of transparency and propriety for public law decisions. For, when taking a licensing decision, authorities are in something of a quasi-judicial capacity. And any fair-minded and informed observer worth his salt will certainly raise an energetic eyebrow and blow the referee’s whistle at the material involvement in the pre-decision processes of a close relative of the decision-maker.
As to the involvement of officers, the comments of Lord Justice Sedley in R (Deborah Domb and others) v The London Borough of Hammersmith and Fulham and the Equality and Human Rights Commission [2009] EWCA 941 are ever resonant (although made in a very different context). He pointed out that ‘since members ... are heavily reliant on officers for advice... it is ... doubly important for officers not simply to tell members what they want to hear but to be rigorous in both inquiring and reporting to them’. Officers need to take these comments to heart. Although it may at times prove uncomfortable to do so, council officers are paid to give the council proper and objective professional advice in the public interest and not to provide unwarranted decision cover for councillors.
http://www.lawgazette.co.uk/in-practice/
Login
Register
FAQ
) please print the above off and send it to your licensing officers and licensing councillors, because that is as important a piece of information as any of us will ever read? 
