ON SCOTTISH GOVERNMENT PROPOSALS TO ALTER THE LICENSING SYSTEM FOR TAXI AND PRIVATE HIRE VEHICLES
The Scottish Government released it’s consultation on proposals to amend the Civic Government (Scotland) Act 1982 to “tighten up” the licensing system for taxi and private hire cars. The two drivers for this appear to be concerns about organised crime; and the lack of a robust enforcement regime.
The consultation can be accessed here.
I have had a very brief look at the proposals. There is much to ponder here and some of the proposals are, to my eye, controversial. Some of the headlines are:
1. The introduction of a cap on private hire car licences
At present there is no cap on private hire cars. There is, of course, a cap on taxi licences. There is an indication that there is at least some feeling that the two should be merged, but the SG consider that to be unworkable and so propose a cap on private hire car licences instead. The cap would be down to each local authority. There is also a suggestion of providing local authorities with assistance in calculating “overprovision” or “unmet demand” so as to determine what the cap should be.
2. Introduce “the knowledge” for private hire driver licences
Presently local authorities require taxi drivers to undertake a topographical test which is known as “the knowledge” colloquially – i.e. a sound understanding of the local geography, landmarks, hotels and so on. This is not a requirement for private hire drivers.
3. License certain contract vehicles
The 1982 Act allows an exemption for vehicles which are hired on contract for a period greater than 24 hours. The SG wishes to remove this where the contract is for profit.
4. Review of taxi and private hire licence conditions
The SG is keen that the “Patchwork Quilt” of licensing be reduced somewhat (whilst maintaining local decision making) by having national updated conditions. The idea of having mandatory or standard conditions has already been legislated for under changes to the 1982 Act made by the Criminal Justice and Licensing (Scotland) Act 2010 although those provisions have not been brought into force.
5. Taxi Booking Offices
Currently booking offices must be licensed where the operation is run from a premises and they offer at least 4 cars for hire. The SG wishes to remove both of these exemptions to cover online operations as well as companies with 3 or less cars. There is a suggestion that the booking office licence is being artificially circumvented by certain companies.
6. Enhanced Police Reporting
The SG notes concerns over the differing approaches taken by licensing authorities in matters such as what may constitute “fit and proper”. It believes this local flexibility must remain but proposes replicating some of the reporting provisions the police have under the Licensing (Scotland) Act 2005; namely the requirement to report as to the presence of convictions or otherwise of the applicant.
7. Introducing “Licensing Objectives” for the 1982 Act
This is possibly the most significant development here. The SG is again casting one eye towards the Licensing (Scotland) Act 2005 and indicates that similar objectives should be introduced to the 1982 Act. It does not propose what those objectives should be. The 2005 Act objectives have been far from free of controversy and debates rumble on even now following appeal decisions such as Brightcrew.
8. Guidance on “evidence” at hearings
The use of “evidence” at licensing hearings is an extremely vexed topic which I have commented on before in this blog. The SG propose introducing national guidance on use of police intelligence, good practice at hearings, considering information and justifying refusal as well as enhanced “discovery” on foreign convictions and us of training to “promote highter standards of entry to trade”
9. Inverting the onus of the burden of proof as to “fit and proper”
This is another extremely significant proposal. The 1982 Act system is such that it is for the licensing authority to prove that an applicant is not a fit and proper person, not for him to prove that he is. The SG wish to strip that from the Act and place the burden on the applicant. This is likely to be controversial. The proposal relates to taxi and private hire care driver licence applicants only, so far as I can see, and if carried through would result in differing evidential burden for different licence categories.
10. Greater information sharing on best practice of how to refuse a licence
This is more of a voluntary proposal rather than a legislative change, which would see greater interplay between local authorities in learning from one another as to how to properly refuse a licence. This is called a “licensing policy network”.
11. Introduce a statutory requirement for “LSOs” for taxi and private hire enforcement
The cost of these new officers would be borne by the trade through increased fees. The SG says: “There appears to be a general acceptance by the most reputable and professional end of the trade that increased enforcement capacity would require an increase in fees. As long as it results in a demonstrable improvement in enforcement”. Again this proposal is as a result of long glances at the 2005 Act. There are in fact a number of local authorities who already employ taxi and private hire enforcement officers. This would see them given a statutory role and powers.
12. “Special Events” Vehicle Licensing
Finally, there is discussion of a possible new type of licence for vehicles hired out for special events such as the stag or hen limo. The SG seem concerned that such vehicles are not properly licensed. Part of the issue here maybe that a number of these vehicles should or could be licensed under the Licensing (Scotland) Act 2005. There has been a long and discernable objective of preventing “double licensing” in Scotland with numerous exemptions built in to the legislative framework. Generally speaking, if one holds an alcohol licence, one need not apply for a civic licence. It will be interesting to see how this particular subset of licensing develops following this consultation.
There is much to consider in this consultation but I have one or two initial observations.
It is clear that the SG believes that there are a number of unsavoury persons evading an appropriate level of checks and balances. The suggestion that the onus of proof for the “fit and proper test” should be inverted is a remarkable step and one which rails against decades of licensing jurisprudence. Introducing “licensing objectives” under the 1982 Act is another eye-opening suggestion although there is no suggestion that I could see that these should be implanted in the Act as, for example, a ground of refusal in the same way that they exist in the 2005 Act. Instead the proposal appears to relate to using them to help formulate conditions. The 2005 Act objectives are much more than simply indicators for policy formulation.
There is a definite feeling throughout that the SG believes there are licences being issued to persons who should not be allowed to hold them. That much comes across from the suggestion of sharing “best practice” in how to refuse a licence, and the proposals are such that one is left with the impression that what we have here is, in effect, a proposed system where the default position is for the authority to refuse a licence application rather than the present approach of taking each application “on it’s own merits”.
It does appear to me to be odd that a reversed burden of proof and new licensing objectives should apply to taxi and private hire licensing whilst ignoring the other forms of licence such as public entertainment, street traders and so on. It creates a stratification amongst the differing licence types within the same Act and results in a situation where it is “harder” to get one licence as opposed to another.
These are, after all, only proposals for now. The SG has made it clear it is open to hearing all views on this matter and are “committed to an open and productive discussion”.
The consultation is, of course, in early days at this time and I will be interested to see the responses when made available.
The closing date for the Consultation is 15 March 2013.