Hackney carriages first became available for hire in a public street in 1634, when one Captain Baily set four hackney coaches to stand for public hire at the Maypole in the Strand in London.29 The service proved so lucrative that within a year the King found it necessary to issue a Royal Proclamation forbidding the ‘multitude and promiscuous use of coaches’ within London and Westminster.30 This first attempt to regulate the use of hackney carriages was prompted by complaints that they caused congestion and damage in the streets, and by petitions from the Company of Watermen, the incumbent suppliers of publicly hired transport, who feared the new mode of travel would deprive them of their livelihoods.31 However, the absence of a police force or any other official regulator meant that this edict was impossible to enforce.32 A system of licensing for hackney carriages was first introduced in 1654, when Parliament imposed a limit of 400 on the number of carriages in London.
28 The City of Plymouth has had its own regulatory regime for both hackney carriages and private hire vehicles by virtue of private Acts, the Plymouth City Council Acts 1975 and 1987, but the hackney carriage regime is essentially the same as for the rest of England and Wales. Plymouth is therefore included within the scope of the research.
29 Moore (n 5) 36; WT Jackman, The Development of Transportation in Modern England (2nd edn, F Cass and Co, London 1962) 112.
30 ‘A Proclamation for the Restraint of Excessive Carriages to the Destruction of the High Wayes’ (1st November 1635) Proclamations, II Chronological Series, Charles II [1625-1649]. Hired carriages were permitted so long as they were to travel at least three miles out of London, Westminster, ‘or the suburbs thereof’.
31 AE Pratt, A History of Inland Transport and Communication in England (Kegan Paul, Trench, Trübner and Co, London 1912).
32 Gilbert and Samuels (n 15) 14-15.
Responsibility for the granting and regulation of licences was placed in the hands of the Court of Aldermen.33 These legislative provisions, however, were limited in their geographical scope in that they only applied to hackney carriages operating within the City of London. In the rest of England and Wales, the taxi trade remained unregulated for almost another 200 years. Nonetheless, the issues raised by these early attempts at regulation, as will be seen, still resonate across the whole country today.
The current regulatory framework for England and Wales is based on two main statutory provisions; the Town Police Clauses Act 1847 (the 1847 Act) and the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act). The modern system of taxi regulation only began in 1985 with two major amendments to the main Acts, introduced by the Transport Act 1985.
The 1847 Act was the first attempt to regulate the hackney carriage trade outside the City of London. The Act is modelled on the London regulatory regime, in that control of the taxi trade is to be achieved by a system of licences. The licensing authority is provided with the power to grant licences in respect of the hackney carriage itself34 (the vehicle licence) and a separate licence for the driver35 (the driver’s licence). In order to operate legitimately both licences must be held simultaneously at the time the vehicle is standing or plying for hire or is being driven, whether hired or not.36 The statutory framework also employs a separate, but linked, regulatory technique in respect of fares by fixing a maximum price. I consider the use of this mechanism in its
33 ‘An Ordinance for the Regulation of Hackney Coachmen in London and the places adjacent’ in CH Frith and RS Rait (eds), Acts and Ordinances of the Interregnum 1642-1660 (HMSO, London 1911) 922-924.
34 Town Police Clauses Act 1847, s 37.
35 ibid s 46.
36 Hawkins v Edwards [1901] 2KB 169; Yates v Gates [1970] 1 All ER 754.
context of fare regulation. In common with all licensing regimes, regulation of the taxi trade operates as what has been termed a ‘command and control’ type system,37 with the licensing requirements enforced by criminal sanctions for operating without the relevant licences.38
The legislation structures control over the trade in the following ways: by delegating responsibility for regulation to an identified regulator; controlling entry to the trade;
imposing post-entry controls over the quality of service; fare regulation; and the granting of enforcement powers. I consider how each of these is used in turn.
a) Identity of the regulator
The licensing authority responsible for the application and enforcement of the regulatory regime is the local unitary, district or borough council in England, or its equivalent in Wales. The 1847 Act originally placed responsibility for the regulation of hackney carriages in the hands of local improvement commissioners. Such a step was not unusual at the time, and should be seen in its historical context. The Act was passed only 12 years after the creation of local councils in their recognizable modern form under the Municipal Corporations Act 1835. Prior to this date, local municipal functions were frequently performed by special ad hoc bodies, such as commissioners or local boards.39 The corporations which existed before 1835 were viewed as being beset by twin evils of corruption and inefficiency,40 and even after the 1835 Act, ‘it was impossible by the stroke of a pen to get rid of the deep rooted mistrust of
37 AI Ogus, Regulation: Legal Form and Economic Theory (Clarendon Press, Oxford 1994) 79.
38 Town Police Clauses Act 1847, s 45 and s 47.
39 J Redlich and FW Hirst, The History of Local Government in England (B Keith-Lucas (ed), Macmillan, London 1958) 125.
40 PP Craig, Administrative Law (6th edn Sweet & Maxwell, London 2008) 62.
municipal authorities’.41 This mistrust continued for many years, leaving many administrative functions still in the hands of local commissioners. This situation changed with the passing of the Public Health Act 1875, which brought the provisions of the 1847 Act under the responsibility of the urban district councils, in their capacity as the newly formed ‘sanitary authorities’.42 The inclusion of taxi licensing would appear to have been almost coincidental, as it clearly has little to do with public health as such. The Public Health Act 1875 removed the commissioners’ role altogether.
From this point onwards, taxi regulation was the responsibility of the local authority.
However, initial control over the trade was weak, largely because the regime operated on an ‘opt-in’ basis. Local councils which wished to regulate taxi services in their area had either to pass a local ‘Special’ Act to apply the 1847 Act or, more commonly, pass a resolution to adopt the provisions of the legislative scheme of both Acts.43 This was an important consideration, as there was no ‘default’ position of central government control. If the local council did not adopt the regulatory powers, there was no control at all over the conduct or standards of taxi drivers or their vehicles. Prior to 1985, out of the 360 district councils which then existed, 70 controlled taxis in only part of their area and a further 60 councils did not licence taxis at all.44
This difficulty was remedied by the coming into force of section 15 of the Transport Act 1985. This section made responsibility for taxi licensing compulsory for all local authorities with effect from the 1st January 1987. This was a radical change to the
41 Redlich and Hirst (n 39) 137.
42 Public Health Act 1875, s 171(4)
43 Town Police Clauses Act 1847, s 2; Local Government (Miscellaneous Provisions) Act 1976, s 45.
44 HC Deb 21st May 1985, vol 79 col 946 (Michael Spicer MP, Transport Minister).
system, and may be seen as the introduction of the modern system of regulation of the taxi trade. All local councils are now compelled to take responsibility for the licensing of taxis throughout their area.
b) Control of entry to the trade
The provisions introduced by the 1847 legislation impose only loose control over both vehicles and drivers. Market entry is controlled merely by the need to obtain a licence. The Act does not fix upper limits on the number of licences which can be issued. Historically, such quantitative restrictions were placed on the numbers of vehicles, drivers and horses.45 Although the maximum number of licences was gradually increased over the years, all such restrictions were removed from the London regime in 1831,46 never to be reinstated. Outside London, the original section 37 of the 1847 Act provided that the licensing authority could licence ‘such number of hackney coaches or carriages…as they think fit’. This meant that regulators could exercise a discretion to limit market entry by imposing an upper limit on the number of vehicle licences that they would grant for their area. The 1976 Act left the position on quantitative regulation unchanged. This traditional position was changed by section 16 of the Transport Act 1985, thereby creating one of the most divisive and enduring controversies within the taxi trade today.
Section 16 amends Section 37 of the 1847 Act, but it is both the manner and effect of the amendment which are the causes of confusion and controversy. The amended version of section 37 now reads:
45 Frith & Rait (n 33) 922. The initial limits imposed under the 1654 Ordinance were 200 coachmen, 400 coaches and 600 horses.
46 London Hackney Carriage Act 1831, s 2.
The commissioners may from time to time licence to ply for hire…hackney coaches or carriages…provided that the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet.
Much criticism has been made about the wording of the new Section 37, particularly its use of double negatives. This makes the provision difficult to understand even by judges and legislators. The provision was variously described in the committee stage of the House of Lords as ‘quite incomprehensible’, ‘virtually unintelligible’, and both
‘a masterpiece of obscurity’ and ‘awful claptrap’.47
The introduction of the amended version of section 37 has created a situation in which it is very difficult for local authorities to limit the number of taxi licences they grant.48 The discretion previously vested in licensing authorities to determine the number of hackney carriage licences is removed, except in the very limited circumstances prescribed by the legislation. In order to restrict numbers, local authorities have to be able to demonstrate that there is no significant unmet demand for hackney carriage services in their area. According to some interpretations of the statutory provisions, in the absence of evidence that there is no significant unmet demand, the local authority has no discretion at all; a licence has to be granted.49 The decision whether significant unmet demand exists is left to local authorities to interpret. Initially, councils were provided with only the vaguest of guidelines on what
47 HL Deb 16th July 1985, vol 466, cols 618-679 (Lord Renton col 628; Lord Denning col 629; Lord Peyton of Yeovil cols 630-631 respectively).
48 C Walker and I Cram, ‘Taxi Deregulation and the Courts’ (1991) 20 Anglo-American Law Review 482.
49 R v Reading Borough Council ex p Egan [1990] RTR 399.
significant unmet demand meant,50 but it is now widely accepted that it has to be established on the basis of an expert survey.51 Central government has endorsed this position and indicated that councils can only base their assessment of significant unmet demand on such a survey carried out every three years.52
The 1847 Act gives no express power to control entry to the market on the basis of the quality of vehicles or drivers. The open wording of section 37 and section 46 of the Act suggests that any one who requests a vehicle or driver’s licence has to be granted one. So far as vehicle licences are concerned, this is in contrast to the position for private hire vehicles, which must be considered suitable, safe and comfortable for use as such a vehicle before a licence may be granted.53 It has been argued that, since the amendment to section 37 of the 1847 Act, local authorities do not have the power to control vehicle entry on the grounds of quality. This results in the possibility that an unroadworthy vehicle could be licensed as a hackney carriage. In R v Reading BC ex p Egan,54 Nolan J held that the effect of section 16 of the Transport Act 1985 was that councils had no discretion other than to grant a licence if there was no significant unmet demand.55 However, in Ghafoor v Wakefield MBC,56 Webster J held that the words ‘for the purpose of limiting the number of hackney carriages’ contained in section 37 indicated that local authorities still retain discretion to refuse to grant a licence so long as the purpose of doing so is something other than limiting numbers.
The practical effect of restricting entry by reference to quality standards is to limit the
50 Department for Transport Circular 3/85.
51R(North Devon HCOA) v North Devon District Council [1999] EWHC 503 (Admin).
52 Department for Transport, ‘Best Practice Guidance’ (n 2) [49].
53 Local Government (Miscellaneous Provisions) Act 1976, s 48(1).
54 [1990] RTR 399.
55 Transport Act 1985, s 16.
56 [1990] RTR 389.
numbers of hackney carriages ‘by the back door’.57 There can only be a finite number of vehicles that are able to meet the quality standards.58 The obvious conflict between these authorities remains unresolved.
Historically, the power to grant a licence to a driver was unqualified and open-ended,59 and there is no express power to limit numbers of drivers in any circumstances. The wording of the London regime suggests that an applicant has a right to a licence unless a specific disqualification applies,60 but the provisions of the 1847 Act are worded differently and are simply left open. Some licensing authorities took the view that to be granted a licence was a personal privilege not a right, and so believed they had unqualified discretion to grant or refuse a licence.61 It was never made clear upon what basis this discretion was to be exercised.
The 1976 Act introduced, for the first time, quality pre-conditions for the grant of a driver’s licence. Entry to the market is now limited to only those applicants who can satisfy the licensing authority that he or she is both a ‘fit and proper person’ to hold a licence and has held an ordinary driving licence for a minimum period of twelve months.62 Local authorities are directed to refuse an application for a driver’s licence
‘unless they are satisfied’63 that the applicant meets these two conditions. This position may be contrasted with that of private hire drivers, where an application must
57 Walker and Cram (n 48) 488.
58 As was successfully argued in R v Cambridge City Council ex p Buckshall (Cambridge Crown Court, January 1987), where the Crown Court struck down a requirement that all new applications for vehicle licenses had to be from wheelchair accessible vehicles as it was an attempt to cut down the numbers of new applicants.
59 Town Police Clauses Act 1847, s 46.
60 R v Metropolitan Police Commissioner ex p Holloway [1911] 2 KB 1131.
61 Banton v Davis (1891) 66 LT 192.
62 Local Government (Miscellaneous Provisions) Act 1976, s 59.
63 ibid s 59(1)(a)
be granted to those applicants who meet the same statutory standard.64 There is no explanation why the power to grant a hackney carriage driver’s licence remains discretionary.
There is no statutory definition of the phrase ‘fit and proper person’. The only assistance available to councils in interpreting this requirement comes from the courts, and even that is of limited benefit. Lord Bingham described ‘fit and proper person’ as,
a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used.65
More specifically in the context of taxi licensing, the same judge had said in an earlier case that applicants had to be
safe drivers with good driving records and adequate experience, sober, mentally and physically fit, honest and not persons that would take advantage of their employment to abuse or assault passengers.66
Strictly speaking this was an obiter observation, since McCool concerned an application for a private hire driver’s licence and the court was not attempting to define a ‘fit and proper person’. Nonetheless, the principle has come to be applied by licensing authorities in both hackney and private hire cases when it comes to making their assessment of whether applicants have satisfied this requirement.
64 Local Government (Miscellaneous Provisions) Act 1976, s 51(1).
65R(RBNB) v Warrington Crown Court [2002] UKHL 24; [2002] 1 WLR 1954 [9]. This case concerned the meaning of ‘fit and proper person’ under the provisions of Licensing Act 1964, s 3(1), now
repealed.
66McCool v Rushcliffe BC [1998] 3 All ER 889, 891f (Lord Bingham CJ).
c) Post-Entry Regulation
After licences have been granted, local authorities have powers to impose quality standards on both vehicles and drivers. Under the 1847 Act, these powers are weak and restricted, but much wider controls are provided for in the 1976 Act.
The 1847 Act attempts to regulate certain aspects of vehicle and driver quality by the creation of specific criminal offences. So, in the case of vehicles, there is an offence of failing to display a hackney plate.67 Offences which relate directly to driver misconduct include refusal to drive a passenger,68 driving whilst intoxicated, furious driving or ‘other wilful misconduct’ endangering life, limb or property.69 These somewhat crude efforts to impose quality standards through the criminal law are the only particular offences about the state of vehicles or the conduct of drivers provided by the 1847 Act.
However, under the 1847 Act, the licensing authority also has the power to regulate vehicles through local byelaws.70 Byelaws are a form of delegated legislation and, if validly promulgated, have the ‘force of law within the sphere of [their] legitimate operation.’71 The scope of any byelaws in relation to taxi vehicles is, however, limited by the statute to the manner of display of the vehicle’s licence number, regulation of
67 Town Police Clauses Act 1847, s 52. ‘Plate’ refers to the wooden, metal or, more commonly nowadays, plastic sign issued to taxi owners to be affixed externally to the vehicle as a visible display that the vehicle is a licensed hackney carriage.
68 Town Police Clauses Act 1847, s 53. The Act provides that the offence is committed only if the refusal is ‘without reasonable excuse’. There is no authoritative guidance on what might be considered such an excuse, nor is it clear where the burden of proof lies to establish or disprove its existence. The only reported case on the section is Shepherd v Hack (1917) 117 LT 154, where opinion was divided on these points, which were obiter to the main issue in the case in any event.
69 Town Police Clauses Act 1847, s 61.
70 Town Police Clauses Act 1847, s 68.
71 Kruse v Johnson [1898] 2QB 91, 96 (Lord Russell CJ).
the numbers of persons to be carried, and the manner in which the vehicle is furnished.72 Quality standards relating to, for example, the structural and mechanical condition of the vehicle are not included within the range of the byelaws. The same legislative provision also includes powers to regulate ‘the conduct of proprietors and drivers’.73 There is nothing further specified in the legislation about how, or indeed why, the conduct of the proprietor, that is the legal owner or registered keeper of the vehicle,74 needs to be controlled. In the case of drivers, byelaws may stipulate how they are to conduct themselves generally, as well as making specific rules regarding the wearing of badges, drivers’ times of work, and the safe custody and return of customers’ property.75 As in the case of the specific offences, byelaws rely on the threat of criminal sanctions in the event of a breach.
The 1976 Act introduced, for the first time, an express power for local authorities to impose conditions upon any hackney vehicle licence granted by them. The only qualification to this provision is that the conditions must be considered ‘reasonably
The 1976 Act introduced, for the first time, an express power for local authorities to impose conditions upon any hackney vehicle licence granted by them. The only qualification to this provision is that the conditions must be considered ‘reasonably