Methods of regulating driver entry

right that there should be freedom in the legislation to give us discretion to set standards locally. Interview 5, Chair of Licensing Committee.

[This authority] isn’t [the neighbouring authority] and I don’t want our drivers to worry that we will follow their decisions. They have a totally different environment to work in. It’s local decisions, based on local needs. We have our own way of deciding these issues. Interview 14, Chair of Licensing Committee.

I’d say the balance is about right as having discretion allows us to be flexible and do things our way, without being too concerned about any outside influences or what other authorities do. We can set our own local standards to make local decisions. Interview 37, Senior Licensing Officer.

Although localism significantly influences the interpretation of the qualifying standards, councils do not offer any further justification for local variations in those standards other than to differentiate their area from other local authorities. Councils do not address the issues of why their interpretation of the qualifying conditions is to be preferred to that of another area or why their local area’s requirements differ so much from those of other areas. However, because each council applies its own interpretation of the circumstances in which discretion may be exercised, localism also influences the methods of regulating driver entry, particularly when it comes to applying those methods in practice. The methods used to restrict driver entry are considered in the next section.

3) Methods of regulating driver entry

Historically, the power to grant a licence to a driver was unqualified and open-ended, but is now restricted by the need for applicants to satisfy the qualifying criteria of fitness and propriety and holding an ordinary driving licence for the minimum

period of twelve months.¹⁰ The exercise of discretionary power in the interpretation and application of these qualifying conditions, in particular the ‘fit and proper person’

requirement, was considered in section 2 of this chapter. The use of a ‘fit and proper person’ criterion creates difficulties both in terms what this phrase means and what it encompasses.

a) What does ‘fit and proper’ mean?

Although the ‘fit and proper person’ test is designed to play an important part in restricting driver entry to the market, there is no definition of this phrase in the legislation and the assistance provided by the courts is of limited benefit.¹¹ In the absence of definitive guidance, it is not surprising that local authorities adopt their own interpretations of the phrase. One respondent indicated that his council used the statement of Lord Bingham CJ in McCool¹² as their guide to interpretation:

I can recite it [Bingham CJ’s dicta] word for word it comes up that often in committee meetings and appeals. [He recites passage from Bingham’s judgement]. That’s what we base our understanding of fit and proper person on. Can the applicant measure up to that? Interview 10, Enforcement Officer.

It will be recalled from chapter 1 that Lord Bingham’s criteria for determining a fit and proper person included that the applicant be a safe driver with a good driving record, experienced, sober, mentally and physically fit, honest and not someone that would take advantage of their employment to abuse or assault passengers.¹³ Other councils are aware of Lord Bingham’s dicta but do not make direct reference to it or have it in their minds when interpreting the phrase ‘fit and proper person’. There are,

10 Local Government (Miscellaneous Provisions) Act 1976, s 59

11 Discussed in chapter 1 section 3b).

12 McCool v Rushcliffe BC [1998] 3 All ER 889 – discussed in chapter 1 section 3c).

13 ibid 891f (Lord Bingham CJ).

however, similarities between the elements involved in Lord Bingham’s description and those upon which officials base their interpretation. Three respondents explained how they interpreted ‘fit and proper person’:

You look at all sorts really whether [the applicant] has a criminal record, what it’s for, what [the applicant’s] driving record is like, what [the applicant’s]

character is like. Do they come across as decent and honest or a bit of a villain? Interview 40, Chair of Licensing Committee.

You weigh up the different factors, don’t you? Has this person been in trouble before? What was the nature of any previous offence? How long ago was it?

Have they kept out of trouble since? Do they have family or relatives to support? Are they up to the physical and psychological demands of the job?

You weigh it up and come to a decision. Interview 45, Senior Licensing Officer.

I would want to see that [the applicant] is going to be a safe and competent driver, they are not going to attack someone or fleece them, drive like a lunatic and be someone I would feel comfortable being driven by. Whatever they have done in the past is only relevant to how they would act as a driver.

Interview 18, Chair of Licensing Committee.

In addition to these general factors that licensing officials use to determine the fitness or otherwise of an applicant, it became apparent from the interviews that there is a widespread use of what is referred to as the ‘relative’ or ‘loved one’ test. This non-statutory and vague test is used by councils as a means of simplifying the process of interpreting the ‘fit and proper person’ requirement. Although there are different versions of this simplified test, they all essentially ask the decision-maker, ‘Would you be happy for your relative, wife, child, or loved one to travel in a taxi with this person?’ Opinions as to the effectiveness of this test are divided, as the following statements illustrate:

I think it’s a useful test, as there’s no doubt about it that there are certain people who would put themselves in the position of taking people for hire and

reward who you would not want your relatives to be in with; you would not want them in there. Interview 32, Senior Licensing Officer.

We always use the test about whether you would trust this person to drive your wife, daughter or loved one. If you can say ‘yes’, then the licence should be granted. We…always find that quite helpful in these sort of cases. Interview 2, Senior Licensing Officer.

One way is to apply the test of harm, you know the…would I trust my daughter to be with this taxi driver? If you’ve ever met my daughter, I’d be more concerned for the taxi driver. But it’s very subjective, isn’t it? It depends how protective you feel towards your family. But then, what would you replace it with? Interview 5, Chair of Licensing Committee.

When you look at the ‘would you want your loved one in a taxi with this person’ test, well some days I’d be happy to see my [spouse] get in a taxi with Freddy Krueger so long as he was out of my hair…I’m being facetious, I know, but you get my point. The test is too subjective. I’m not sure that it’s the best test we could use. Interview 40, Chair of Licensing Committee.

At first glance, these statements give the impression that local authorities are

‘making it up as they go along’ when interpreting the qualifying standard of the ‘fit and proper person’ test. This would suggest a degree of Dworkin’s notion of strong discretion in that the interpretation is based on principles of the council’s own making, outside the bounds of their legal constraints. When examined more closely, however, the factors contained in Lord Bingham’s dicta or the similar elements used by authorities or the ‘loved one’ test could all be seen as attempts to create some recognizable principles, albeit somewhat imprecise ones, upon which to interpret a provision which is itself vague and poorly defined. The practical difficulty is that with the use of locally determined principles comes local variation in interpretation of the term which leads to inconsistency in entry restrictions. An applicant considered ‘fit and proper’ on one council’s understanding of that phrase may not be deemed ‘fit and proper’ in another area, resulting, in the latter case, in refusal of a licence. This situation is not improved by a lack of consensus on the scope of the ‘fit and proper’

requirement.

b) What does ‘fit and proper’ include?

In trying to understand how entry to the market is restricted, an already complex situation is not helped by confusion about the scope of the ‘fit and proper person’

requirement. The statutory wording suggests that ‘fit and proper person’ is an overarching standard which has to be attained before the local authority may exercise its discretion to grant a driver’s licence. This is the view taken by 21 councils which consider the ‘fit and proper person’ standard to be constituted of a number of different factors, such as medical fitness, driving ability and criminal record.¹⁴ However, eleven councils, according to their documentation,¹⁵ treat the ‘fit and proper person’

requirement as either a stand alone element, which has to be satisfied in addition to the other factors, or as relevant to criminal convictions only.

The treatment of the ‘fit and proper person’ test as either a stand alone requirement or an overarching one causes a number of difficulties. One is what precisely constitutes the stand alone ‘fit and proper person’ test, if elements such as medical fitness, criminal record and driving ability are not included. Furthermore, does the local authority have the power to refuse a licence even where an applicant meets all of the other criteria? The fact that so many councils take such an approach serves to highlight a general inconsistency which is prevalent in the area of taxi licensing. The point may appear to be an academic one but it has practical implications for an applicant’s right of appeal which is regarded as an important check on the exercise of

14 These factors are discussed further in section 4 of this chapter.

15 Great Yarmouth Borough Council, ‘Hackney Carriage and Private Hire Driver’s Licences:

Information and Guidance Notes for New Drivers’ (2011), is one example.

necessary discretion.¹⁶ An aggrieved applicant whose application has been refused may only appeal if the ground for refusal was that the applicant was not considered to be a ‘fit and proper person’.¹⁷ If an application is refused for some other reason, then the applicant’s only redress is to challenge the decision by way of judicial review which is much more limited than an appeal.

Councils, however, do not draw any fine dividing lines between the ‘fit and proper person’ test and the elements which comprise it, regardless of the position set out in their documentation. In practice, local authorities either fail to appreciate the distinction, regard it as of no consequence, or treat the phrase ‘fit and proper person’

as a default position if no other element covers the situation with which they are presented. These points are illustrated by the following statements:

I’m not aware of it being treated as a separate issue. If we’re asked to deal with a case, then we just treat everything as part of the [fit and proper person]

test. I suppose it’s separate to cover any cases that aren’t covered elsewhere…we can’t think of every possible situation we might face.

Interview 2, Senior Licensing Officer.

I don’t know really. I guess that’s designed to cover any other issues that come up that affects their fitness that might not be covered by our conviction or medical policies. Interview 30, Senior Licensing Officer.

[A case] is only likely to come before committee if something has come up on the CRB check or wherever. If it comes to our committee, there’s a grey area and we have to apply the fit and proper standard to that. Interview 14, Chair of Licensing Committee.

16 Davis (n 3) 142

17 Local Government (Miscellaneous Provisions) Act 1976, s 59(2).

c) Conclusions on methods of regulating driver entry

Unlike the case of vehicle entry, in the case of drivers there is only one method of regulating entry to the market. This is based on a quality standard, achievement of which is assessed by the exercise of discretionary powers subject to the applicant satisfying two preconditions. The focus of the discretion is not so much on whether to grant the licence, but on the interpretation and application of one of the preconditions.

It is in the meaning and scope of ‘fit and proper person’ that the choice lies and upon which authorities most direct their attention in determining applications. Satisfaction of the qualifying conditions does not, however, automatically guarantee that a licence will be granted as councils are still able to exercise the discretion to refuse, as will be seen.